Citation Nr: 1319077 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 10-41 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. WITNESSES AT HEARING ON APPEAL Appellant, daughter, and caregiver ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The appellant testified during a Board hearing in February 2013. A copy of the hearing transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The National Personnel Records Center (NPRC) certified 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 service requirements for eligibility to a one-time payment from the FVEC fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that because the claim at issue is limited to statutory interpretation, the notice do not apply in this case. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002). VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004). Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). For eligible persons who accept a payment from the FVEC Fund, the payment shall constitute a complete release of any claim against the United States by reason of that service. However, nothing in the act prohibits a person from receiving any benefit (including health care, survivor, or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of the Act. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). An eligible person is any person who served (A) 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 of the President dated July 26, 1941, including among such military forces 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; or (B) in the Philippine Scouts under § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and was discharged or released from service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012), Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies with the relevant service department, not with VA. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). In a February 2009 claim, the appellant provided his identifying information and contended that he was eligible for a one-time payment from the FVEC fund as a result of service in B Company, 1st Battalion, 121st Infantry, USAFIP-NL, from December 22, 1941, to November 30, 1945. The appellant also claimed that he served with the 43rd Division Guerilla Unit as a member of the recognized guerillas. The RO noted that the appellant's name was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by the RO. The RO requested verification of service by the applicable United States service department using the appellant's full name, place of birth, date of birth, dates of service, and unit designations provided by the appellant in his supporting documents. The RO requested searches using several iterations of the appellant's name, to no avail. In addition to the verification information the RO listed on the forms, the RO also supplied the NPRC with copies of most of relevant records submitted by the appellant. In October 2010 and November 2012, the NPRC responded 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. Consequently, the RO determined that the appellant did not have the requisite service to establish eligibility for payment from the FVEC Fund and, thus, denied his claim. During the course of his appeal, the appellant has submitted additional documentation contesting the RO's decision and attesting to his qualified service. That evidence includes a personnel record noting the appellant's service from December 1941 to March 1945, to include his proficiency as a rifleman; a signed statement authored by Vincente Lopez, dated in July 1946, in which he attested that he organized the US-Chinese volunteers in the Philippines, and that he personally indicted the appellant was a member; an affidavit detailing the record of the appellant's activities as a guerilla; an honorable discharge from the Philippine Army (with an incomplete date); an application for old age pension to the Philippine Veterans Affairs Office; copies of the appellant's personal identification cards; American citizenship registration dated February 1967; registration to the Veterans Federation of the Philippines; and a Certificate of Recognition noting the appellants unit designation. However, neither the submitted documentation, nor lay evidence, qualifies as acceptable proof of service. 38 C.F.R. § 3.203 (2012). The record does not show that the evidence was issued by the service department, as the NPRC was unable to verify that information, nor does it contain the necessary information to establish entitlement to the benefit sought. Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the FVEC Fund. NPRC has duly considered the appellant's application for VA benefits and 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 that certification. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA). The appellant testified before the undersigned during a Board hearing held in February 2013. At that time, the appellant, through a translator, indicated that he fought the Japanese in several location during World War II. Despite the appellant's testimony, and the evidence submitted in support of his claim, the Board concludes that the appellant does not meet the requisite legal requirements for obtaining a one-time payment from the FVEC Fund. Therefore, his claim for benefits must be denied. In reaching this conclusion, the Board remains sympathetic to the appellant and does not question the sincerity of his belief that he is entitled to VA benefits, specifically in the form of payment from the FVEC Fund. Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C.A. § 7104 (West 2002 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994). ORDER The appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund and the claim is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs