Citation Nr: 1318937 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 12-08 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Appellant contends that he had service with the U.S. Armed Forces, specifically including recognized guerilla service, during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the Department of Veterans Affairs (VA) Regional Office in Manila, Republic of the Philippines (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT The National Personnel Records Center (NPRC) has indicated that the Appellant had no service as a member of the Philippine Commonwealth Army, including the Recognized Guerrillas, in the service of the United States Armed Forces. CONCLUSION OF LAW The Appellant does not have recognized active military service for the purposes of obtaining the one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. § 5101 (a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act, Section 1002, Pub. L. No. 111-5 (Enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the law regarding VA's duties to notify and assist have no effect on an appeal where, as here, the law, and not the underlying facts or development of the facts, is dispositive. 38 U.S.C.A. § 5103A (West 2002 & 2012); Manning v. Principi, 16 Vet. App. 534 (2002). Historically, the Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt. Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that many of those who served in the Philippine Islands during World War II did not have qualifying active service for the purpose of receiving VA benefits. 38 U.S.C.A. § 107 (West 2002). The particular benefit claimed originated on February 17, 2009 with the American Recovery and Reinvestment Act (Act), to promote job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization. Pub. L. No. 111-5, 123 Stat. 115 (2009). That legislation established the Filipino Veterans Equity Compensation Fund, which provides one-time payments to eligible persons. Pub. L. No. 111-5, § 1002, 123 Stat. 115 (2009). An eligible person is defined as any person who served before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order dated July 26, 1941. That includes any person who served in military units such as the organized guerrilla forces, under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States; and any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). Additionally, the person must have been discharged or released from service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115 (2009). The Act further directs VA to administer the provisions in a manner consistent with applicable provisions of Title 38 of the United States Code, and other provisions of law, and shall apply the definitions in 38 U.S.C.A. § 101 in the administration of the provisions, except to the extent otherwise provided. Pub. L. No. 111-5, § 1002, 123 Stat. 115 (2009). Specifically, VA is authorized by statute to prescribe regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under the laws administered by VA. 38 U.S.C.A. § 501(a)(1) (West 2002). Pursuant to that authority, regulatory guidelines have been developed governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. Findings by the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992). Moreover, where the United States service department does not certify the claimant's alleged service in the Philippine Army, VA cannot consider his claim for Veterans' benefits based on that service. Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997). In February 2009, the RO received the Appellant's claim for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. In the application, the Appellant contended that he served from December 15, 1942 to May 31, 1945 as a Guerrilla in the 6th Replacement Battalion Army, Camp Tiring, Cabatuan, Iloilo. No other documentation was submitted at that time. In November 2009, the RO submitted a request to NPRC for certification or verification of the Appellant's claimed military service in the Armed Forces of the United States. In a December 2009 response, which was received by the RO in January 2010, NPRC indicated that the Appellant "has no service as a member of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Forces." Consequently, the RO denied the Appellant's claim. The RO sent the Appellant a notification of this decision in a January 2010 letter. In response to the January 2010 decision and letter, the Appellant submitted various documents in June 2010 purporting to show that he had the requisite service to establish basic eligibility to receive the one-time payment from the Filipino Veterans Equity Compensation Fund. The documents include photocopies of (1) a May 1999 "Certification" from the General Headquarters, Armed Forces of the Philippines, Office of the Adjutant General, demonstrating service as a Guerilla from December 15, 1942 to May 31, 1945; (2) a July 1991 Application for Old Age Pension from the Philippine Veterans Affairs Office; (3) a "Corroborated Affidavit" by the Appellant and two witnesses attesting to the Appellant's service in the Philippine Army as a member of the 6th Replacement Battalion Army at Camp Tiring, Cabatuan, Iloilo; and (4) an August 1943 memorandum from the Army of the United States of America, showing that the Appellant was listed as a Private First Class and a "Special Operative" engaged in procuring important military supplies in enemy occupied areas. In July 2010, the RO submitted another request to NPRC for certification or verification of the Appellant's claim military service in the Armed Forces of the United States, to include review of the documentation submitted by the Appellant. In a January 2011 response, which was received by the RO in February 2011, NPRC again indicated that the Appellant "has no service as a member of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Forces." As such, the denial of the Veteran's claim was confirmed and continued. The Appellant was provided notice of this decision via an April 2011 letter. After the RO issued the April 2011 letter, the Appellant perfected an appeal. Other than his assertions, no additional evidence was submitted or obtained in support of the Appellant's claim. The NPRC has duly considered the Appellant's application for VA benefits, including the documentation submitted by the Appellant, and has twice certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. The Board is bound by those certifications. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the United States service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA). For the foregoing reasons, the Appellant does not have the requisite service to qualify for a one-time payment from the Filipino Veterans Equity Compensation Fund. Therefore, his claim for benefits must be denied. The Board is sympathetic to the Appellant, and does not question the sincerity of his belief that his service qualifies as recognized guerrilla service with the American Forces during World War II. However, a determination in this regard is not within the Board's jurisdiction, and the matter must be resolved with the service department and not VA. The Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994). This case is decided based on its application of this law to the pertinent facts. Owings v. Brown, 8 Vet. App. 17 (1995); Kelly v. Derwinski, 3 Vet. App. 171 (1992) (holding that the law must be interpreted as it exists, and cannot extend benefits out of sympathy for a particular claimant). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation fund is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs