Citation Nr: 1319081	
Decision Date: 06/12/13    Archive Date: 06/21/13

DOCKET NO.  11-02 905A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.  


ATTORNEY FOR THE BOARD

Thomas D. Jones, Counsel



INTRODUCTION

The appellant alleges qualifying service for legal entitlement to a one-time payment from the FVEC fund.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Manila, the Republic of the Philippines.  

Please note 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) has certified that the appellant had no requisite qualifying service, to include as a member of the Philippine Commonwealth Army or the recognized guerrillas, in the service of the Armed Forces of the United States.


CONCLUSION OF LAW

The appellant does not have recognized active military service for the purpose of obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012).  



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012).  

The question currently before the Board is whether the appellant has qualifying service to establish eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund.  The record shows that the National Personnel Records Center (NPRC) reported that the appellant had no qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  Because qualifying service and how it may be established are governed by law and regulations and the service department's certification is binding, the Board's review is limited to interpreting the pertinent law and regulations.  Where, as here, the interpretation of the law is dispositive of the appeal, neither the duty to notify nor the duty to assist provisions of the VCAA apply.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004. 

Nonetheless, the Board notes that the RO provided the appellant with a copy of the January 2010 decision, the October 2010 Statement of the Case (SOC), a January 2011 notice letter, and the September 2011 Supplemental Statement of the Case (SSOC), which included a discussion of the facts of the claim, the laws and regulations pertaining to eligibility for benefits under the Filipino Veterans Equity Compensation Fund and verification of military service, notification of the basis of the decision, and a summary of the evidence considered to reach the decision.  

The appellant has also had a meaningful opportunity to participate in the processing of the claim.  In addition to the information the appellant provided on the January 2011 VA Form 21-4138, Statement in Support of Claim, the appellant has submitted additional records and statements in support of the claim.  The appellant has not identified or submitted any additional pertinent evidence which should be considered.  

In light of the foregoing, the Board concludes that no further notification or development of evidence is required.  No useful purpose would be served in remanding this matter for yet more development.  The Board will proceed with appellate review. 

Eligibility for FVEC One-Time Payment

The appellant seeks a one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC).  Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC.  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).  Payments for eligible persons will be either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens.  For eligible persons who accept a payment from the FVEC, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service."  Nothing in the act "prohibit[s] 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 this Act."

Section 1002 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II.  Section 1002(d) provides that an eligible person is any person who--(1) 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 (New) Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538), Public Law 190, 79th Congress; and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable.

Under 38 C.F.R. § 3.203(a) (2012), VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department, if the evidence meets the following conditions: (1) The evidence is a document issued by the service department.  A copy of an original document is acceptable if the copy is issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; and (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of VA, the document is genuine and the information contained in it is accurate.

When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a), VA is required to request verification of service from the service department.  See 38 C.F.R. § 3.203(c).  Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and the VA has no authority to amend or change their decision.  The United States Court of Appeals for Veterans Claims (Court) has held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon VA.  See Spence v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). 

In this case, the appellant submitted documents along with his claim, and those records were forwarded to the National Personnel Records Center (NPRC) for verification.  Pertinent records submitted by the Veteran include: a document entitled "Service Record" allegedly showing entrance into active duty in August 1942; a document entitled "Enlistment Record" showing service separation from the Philippine Army by honorable discharge in September 1945; an application for veteran's old age pension from the Philippines Veterans Affairs Office; a letter dated in July 1994 stating the appellant's name is listed in the Approved Revised Reconstructed Guerrilla Roster; copies of various identification cards issued by the Republic of the Philippines and the Veterans Federation of the Philippines, and; a certification of service issued by the Office of the Adjutant General, Armed Forces of the Philippines, showing service between August 1943 and September 1945.  Also submitted by the Veteran is a U.S. Civil Service Commission SF-50, Report of Personnel Action, dated in September 1980.  On this form, under "Veteran Preference", a "1" is entered, indicating no veteran's preference applies.  In November 2009, the NPRC certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.  

The appellant submitted additional documentation in February 2010, along with his notice of disagreement (NOD).  Specifically, the appellant submitted a certificate issued by the Philippines Veterans Affairs Office, Department of National Defense, Republic of the Philippines, showing that the appellant has been awarded a veterans old age pension.  In February 2011, the appellant submitted a copies of a Soldier's Qualification Card and a document titled Extract Service Record an unknown form purportedly showing service from August 1943 to August 1945.  These documents were submitted after the November 2009 certification; hence, these documents were forwarded to the NPRC.  In October 2010 and again in July 2011, the NPRC again certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.  

Upon review of the evidentiary record, the Board notes that the appellant has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1).  While the appellant did submit various records in support of his claim, these documents fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department, but rather documents from the Philippine government or sources other than the appropriate service department.  As such, these documents may not be accepted as verification of service for the purpose of determining eligibility for VA benefits, including the one-time payment from the FVEC.  

The NPRC has certified on multiple occasions that the appellant had no qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  This verification is binding on VA such that VA has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet App. 530, 532 (1992).  Likewise, the Board acknowledges that, according to a statement from the Manila RO, the appellant's name appears on the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by that office.  Nevertheless, however, VA is bound by service department determinations regarding what constitutes service in the Armed Forces of the United States, and the appellant's presence on the RRGR is not definitive proof of his qualifying service.  The NPRC was made aware of this fact on several occasions, and this information did not change that agency's findings regarding the appellant's lack of qualifying service.  

The proper course for the appellant, if he believes there is a reason to dispute the report of the service department or the content of military records, is to pursue such disagreement with the service department.  See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).  Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that government, is not sufficient for benefits administered by VA.  The Department of Veterans Affairs is bound to follow the certifications by the service departments with jurisdiction over United States military records.  Based upon the record in this case, 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.  He may not, therefore, be considered an eligible person for the purpose of establishing entitlement to the one-time payment from the FVEC.  

Because the disposition of this claim is based on the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  Moreover, because the law, rather than the facts of the case, is controlling, the provisions of 38 U.S.C.A. § 5107(b) are not for application. 


ORDER

Legal entitlement to a one-time payment from the FVEC Fund is denied.  



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs