Citation Nr: 1319237	
Decision Date: 06/13/13    Archive Date: 06/21/13

DOCKET NO.  10-47 266	)	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.


ATTORNEY FOR THE BOARD

L.B. Cryan, Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Manila, the Republic of the Philippines, which denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund.  

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 service department 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 during World War II.


CONCLUSION OF LAW

The appellant does not have the requisite service to establish entitlement to payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant contends that he had recognized guerrilla service in the Philippine Commonwealth Army, during World War II.  Therefore, he asserts that he is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. 

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, 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.  

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) (2012).

With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability.  38 C.F.R. § 3.203(b) (2012). 

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) (2012).

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 benefits based on that service.  Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997). 

In March 2009, the RO received the appellant's claim for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.  Included with his claim are several documents purporting to show that he has had the requisite service to establish basic eligibility to receive the one-time payment from the Filipino Veterans Equity Compensation Fund.  These documents include copies of records previously submitted in conjunction with an April 1988 claim for VA non-service connected disability pension; and, a January 1995 claim for VA disability compensation or pension.  These claims were denied in July 1988 and October 1995 respectively based on a finding by the National Personnel Records Center that the appellant did not have the requisite qualifying service to establish basic eligibility to VA benefits.  The appellant's claim was denied a third time in May 2005.  

The previously submitted records include a copy of a 1946 Report of Physical Examination of Enlisted Personnel prior to Discharge, Affidavits regarding the appellant's status, a 1994 news item, and a certification from the General Headquarters of the Armed Forces of the Philippines that the appellant was carried as Pfc in the Roster #3, Page 9 and Folder # 292 of the Approved Revised Reconstructed Grla Roster of Combat Co. 63rd Inf Ct 6th MD with date recognition of 20 June 1942 (Grla Roster of 1948).  

The appellant subsequently submitted additional documents purporting to show that he has had the requisite service to establish basic eligibility to receive VA benefits.  They include medical clearance slips, and parts of the appellant's military record, including an "Oath of Induction" from USAFFE 6th Military District; and a death certificate for his spouse.  

In conjunction with his current claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund, the appellant submitted identification cards, which included cards showing membership in the postal union of the Philippines and the Philippine Office for Senior Citizens Affairs, as well as an identification card indicating life membership with the Veterans Federation of the Philippines.  Additional evidence included copies of a community tax certificate, an enlistment/service record, duplicate copies of records previously submitted, an additional certification indicating that the appellant was carried in the revised guerrilla roster on 1948, an identification card from the Philippine Veterans Affairs Office showing that the appellant is a World War II veteran.  Finally, the appellant provided the RO with a list of names of all next-of-kin, living and deceased.  The appellant also submitted a copy of his Bank passbook.  

In a September 2009 letter, the RO notified the appellant that his claim was denied based on a finding that the NPRC found no evidence that he served as a member of the Commonwealth Army of the Philippines, including the recognized guerrillas, in the service of the Armed Forces of the United States.  

In June 2010, the RO sent a request for certification/verification of valid military service in the Armed Forces of the United States.  In a September 2010 response, the National Personnel Records Center (NPRC) indicated that it was unable to verify valid military service, based on the information/evidence submitted by the appellant.  The September 2010 response specifically indicates that the NPRC was unable to verify service as a member of the Commonwealth Army of the Philippines, including the recognized guerillas, in the service of the Armed Forces of the United States.  Notice of the NPRC's finding was provided to the appellant in September 2010.  

In June 2012, the RO sent another request to the RO, attempting to verify service with NPRC attaching all pertinent service records and including all additional service information.  In a July 2012 response from the NPRC, it was once again noted that the appellant did not have any qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States.  

In September 2012, the RO sent another request for service verification to the NPRC attaching all pertinent service records and including all additional service information.  In December 2012, the NPRC responded that no change was warranted in prior negative service certification.

Another request for service verification was submitted to the NPRC in December 2012, noting that the appellant's name was also listed in the page 10 file # 292 of the Reconstructed Recognized Guerrilla Roster maintained by the VARO Manila.  

In a February 2013 response, the NPRC once again determined that the appellant had no qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States.  

The appellant was scheduled to appear for a personal hearing at the RO in February 2013, per his request; however, he failed to report to the hearing, and has not provided a reason for his failure to report.  

None of the submitted documentation and lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203.  On the contrary, the evidence submitted was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought.  Moreover, none of the aforementioned documents is a United States service department document establishing qualifying 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 Filipino Veterans Equity Compensation Fund. 

The NPRC has duly considered the appellant's application for VA benefits and 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).

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 as to the requisite qualifying service 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) (Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant).

Finally, 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.  38 U.S.C.A. § 5103A (West 2002 & 2012); Manning v. Principi, 16 Vet. App. 534 (2002).  That notwithstanding, the RO sent a duty-to-assist letter to the appellant in June 2012 which explained what the evidence must show to establish entitlement to Filipino Veterans Equity Compensation Pension Benefits; and what evidence VA is responsible for obtaining.  


ORDER

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
S. S. TOTH

Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs