Citation Nr: 1319082 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 11-28 482 ) 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 Fund. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION 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). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. FINDING OF FACT The appellant has 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 criteria for a one-time payment from the Filipino Veterans Equity Compensation fund are not met. 38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.9, 3.40, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. However, the United States Court of Appeals for Veterans Claims has held that when the law as mandated by statute, and not the evidence, is dispositive of the claim, the above provisions are not applicable. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002). Additionally, VA's General Counsel held that there is no duty to notify a claimant where the claim cannot be substantiated, e.g., there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. VA's General Counsel also held that there is no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim. VAOPGCPREC 5-2004. Here, there is no legal entitlement to the benefits claimed; accordingly, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim. Any deficiencies of notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). VA requested and obtained service department verification of the appellant's service. Because the service department's certification is binding, the Board's review is limited to interpreting the pertinent law and regulations. Under the circumstances of this case, the Board finds that no additional VCAA notice or assistance is necessary. Evidence and Analysis The appellant contends that he is entitled to VA benefits, specifically a one-time payment from the Filipino Veterans Equity Compensation Fund, due to his service during World War II. The particular benefit claimed originated on February 17, 2009 with the American Recovery and Reinvestment 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 to 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. The guidelines provide that, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a Service Separation Form, 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; (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. 38 C.F.R. § 3.203(a). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). 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); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997). 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. 3d. 747 (Fed. Cir. 1997). In support of his claim the appellant submitted the following: * an April 1998 Certification from the Philippine Veterans Affairs Office advising that the appellant was a regular pensioner with that office; * a statement dated February 24, 2009, from the appellant advising that his service number was [redacted], and that he served with Unit K Repl Co 3rd Bn 2nd Pang Regmt ECLGA (SPAV) from January 3, 1944, to February 20, 1946; * a November 2000 Certification from the General Headquarters, Armed Forces of the Philippines, Office of the Adjutant General, certifying that the appellant had received arrearages pay for service in Unit K Repl Co 3rd Bn 2nd Pang Regmt ECLGA (SPAV) from January 3, 1944, to May 20, 1944; and from May 21, 1944, to May 20, 1945; * a photocopy of an October 2000, statement of service (NA Form 13041), in which the appellant reported that he was a civilian guerilla (PTMD) Pangasinan Tarlac Military Dist. From January 3, 1944, to February 20, 1946; and upon which 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; * a photocopy of a February 1946 Philippine Army enlistment/discharge record; and * photocopies of several types of current identification. This evidence was submitted to the National Personnel Records Center (NPRC) for certification. In January 2010, the 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. The appellant then submitted additional evidence and argument, including the following: * duplicate copies of the October 2000 statement of service (NA Form 13041) with NPRC finding of "no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces;" * another (March 2010) certification from the General Headquarters, Armed Forces of the Philippines, Office of the Adjutant General, certifying that the appellant had received arrearages pay for service in Unit K Repl Co 3rd Bn 2nd Pang Regmt ECLGA (SPAV) from January 3, 1944, to May 20, 1944 and from May 21, 1944, to May 20, 1945; * another photocopy of his February 1946 Philippine Army enlistment/discharge record; and, * an "appeal memorandum" dated October 9, 2011, conceding that the appellant's name was not on the USVA, but arguing that the appellant had an enlistment paper "in the Philippine Army while the Philippines was under a commonwealth government." The author of the memorandum added that "the commonwealth of the Philippines was the designation of the Philippines from 1935 to 1945 when the country was a commonwealth of the United States," and that "the commonwealth was created by Tydings-McDuffie Act which was passed by the United States Congress in 1935." He then argued that the fact that the appellant's name "does not appear in the list of the U. S. Veterans Affairs should be relaxed in view of the existence of his enlistment paper . . . plus the certification from the Armed Forces of the Philippines regarding his military services." This evidence was also submitted to the NPRC for certification. In March 2012, the NPRC again 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. This finding is binding on VA for purposes of establishing service in the United States Armed Forces. Spencer v. West, 13 Vet. App. 376 (2000). Although the appellant seeks to establish eligibility for benefits as a member of the Philippine Commonwealth Army in the service of the United States Armed Forces, he has not submitted a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, or any other evidence issued by the service department; and the NPRC has repeatedly 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). The Board acknowledges the appellant's plight. Nonetheless, because the appellant does not have the requisite service to qualify for a one-time payment from the Filipino Veterans Equity Compensation Fund, his appeal must be denied as a matter of law. CONTINUED ON THE NEXT PAGE ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs