Citation Nr: 1319088 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 11-22 412 ) 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. ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The appellant filed a claim for a one-time payment from the FVEC Fund, which the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, received on January 19, 2010. The RO denied the claim by a letter dated in May 2010. The Board notes that, there is no additional Virtual VA paperless claims file in addition to the paper claims file. 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). FINDINGS OF FACT 1. The appellant filed a claim for a one-time payment from the FVEC Fund, which the RO received on January 19, 2010; the RO denied the claim in a letter dated in May 2010. 2. The National Personnel Records Center (NPRC) has 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 As the criteria for basic eligibility for a one-time payment from the FVEC Fund are not met, the claim is without legal merit. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board observes that the provisions of the law regarding notice and assistance with development have no effect on an appeal where, as here, the law, and not the underlying facts or development of the facts, is dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). See also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). Even so, the appellant was advised in a February 2013 letter of the information and evidence necessary to substantiate his claim as well as his and VA's respective responsibilities in obtaining such evidence and information prior to the readjudication of his claim in the April 2013 supplemental statement of the case. 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 (Feb. 17, 2009). VA may make a payment from the compensation fund to an eligible person who, during the one-year period beginning on the date of the enactment of the Act, submitted to VA a claim for benefits under the Act. The application for the claim shall contain the information and evidence VA requires. Id. § 1002(c)(1). If an eligible person who has filed a timely claim for benefits under Act dies before payment is made, the payment shall be made instead to the surviving spouse, if any, of the eligible person. Id. § 1002(c)(2). 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 a 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 such service under conditions other than dishonorable. Id. § 1002(d). 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). See 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 within the relevant service department; not with VA. 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, supra. In a timely-filed claim, received on January 19, 2010, the appellant provided identifying information, including a social security number, and contended that he was eligible for a one-time payment from the FVEC fund as a result of having "Deserving" guerilla service. He reported that he had served with the East Central Luzon Guerrilla Army (ECLGA) from June 1942 until September 1945. In support of his claim, the appellant provided a copy of a letter from the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office to certify that he "is a veteran of World War II/Philippine Revolution who served with ECLGA" at the rank of first sergeant and was eligible for educational benefits. He also submitted a copy of a United States Passport (issued in October 2008) and a copy of a Republic of the Philippines, Province of Pangasinan, Municipality of Bolinao, Office of the Municipal Civil Registrar documenting the facts of his birth (dated in April 2005) . In his June 2010 notice of disagreement, the appellant argued that, in a March 1994 decision, the United States Court of Appeals for the Ninth Circuit affirmed a district court judgment that allowed Filipino veterans of World War II seeking U.S. citizenship to submit duly authenticated Philippine documents, including Philippine government records, as proof of their military service. The appellant thus claims that NPRC records are not the sole basis for VA determinations of military service records of Filipino veterans. In a letter attached to his August 2011 substantive appeal, the appellant claimed service as an unrecognized guerrilla with the ECLGA under a United States Army officer. In evaluating a prior claim for benefits, the RO received verification of the appellant's claimed military record with the United States Army Reserve Personnel Center in January 1995. Such facility determined that the "[s]ubject has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces." In February 2013, the RO requested verification of service by the applicable United States service department, specifically the NPRC, using the spelling of the appellant's full name, his place and date of birth, reported dates of service and VA file number, and the unit designation provided in his supporting documents. The RO noted that the appellant's name was not listed in the Reconstructed Recognized Guerrilla Roster maintained by the VA RO in Manila. In March 2013, the NPRC responded that no change was warranted from the last finding of no recognized guerrilla service by the appellant. As noted above, the appellant has provided statements and documentation pertaining to his claimed service as a guerrilla in his effort to support this claim. However, none of that documentation or lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203 (2012). On the contrary, that evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought. Indeed, the Board notes that the appellant himself does not claim to be a "recognized guerrilla" but rather a "deserving guerrilla", which is not recognized by VA as verified service. 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. The Board notes that the appellant contends that a United States Court of Appeals decision allows Filipino veterans of World War II seeking citizenship to submit authenticated Philippine documents, including Philippine government records, as proof of the military service. As such, he claims that his documentation of service with the ECLGA issued by the Republic of the Philippines supports his claim. The appellant appears to be citing to the case of Almero v. I.N.S., 18 f. 3D 757 (Fed. Cir. 1994). In that case, the United States Court of Appeals held that veterans were not required to prove their military service solely by certificate from the United States Army under the Immigration Act of 1990, but could use Philippine government records. Id. However, the United States Court of Appeals has since made clear that Almero does not apply to VA benefits. Specifically in Soria, it found that qualifying service in the Philippine Army under the Immigration Act was not at issue as VA regulations govern for the purpose of veteran status for VA benefits. Soria, supra. As such, the Board reiterates that 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, supra. The NPRC has duly considered the present application for VA benefits and has twice 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 Board is bound by that certification. See 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 within the service department, not with VA). The Board is sympathetic to the appellant's situation. However, the pertinent legal authority governing entitlement to payments from the FVEC Fund is clear and specific: it must be shown by verification of the United States service department that the underlying claimant has qualifying service. The Board is bound by the law as written. As, on these facts, there is no legal theory that would permit a one-time payment from the FVEC Fund, the appellant's claim must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The claim for a one-time payment from the FVEC Fund is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs