Citation Nr: 1319362 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 10-45 617 ) 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 Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund. In February 2013, the appellant appeared at a Travel Board hearing held at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with this regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned Veterans Law Judge noted the basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. Additionally, the Veterans Law Judge sought to identify any pertinent evidence not currently in the claims file that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conducting of the Board hearing. 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 service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States. CONCLUSION OF LAW The criteria for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund are not met. 38 U.S.C.A. §§ 101(2), 107(b) (West 2002 & Supp. 2012), American Recovery and Reinvestment Act of 2009 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1(d), 3.6, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notice requirements of VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Here, though, as it is the law, not the facts, which is dispositive of this appeal, the duties to notify and assist imposed by the VCAA are inapplicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The VCAA does not affect matters and has no application when, as here, the disposition of the appeal is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. So the law is dispositive, and basic legal entitlement to the one-time payment from the Filipino Equity Compensation Fund is precluded based upon the appellant's lack of qualified service. Thus, entitlement to the one-time payment from the Filipino Equity Compensation Fund must be denied as a matter of law and VA has no duty to notify or assist the appellant in this appeal. Additional development in this regard would be futile. The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The appellant contends that he had service with the United States Armed Forces in the Far East (USAFFE) and service with the recognized guerrilla service in the Philippine Commonwealth Army, from 1944 to 1945. He also claims qualifying service as a member of the Armed Forces of the Philippines-Philippine Expeditionary Forces to Korea from April 1947 to December 1976. Therefore, he asserts that he is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. Under the American Recovery and Reinvestment Act, enacted February 17, 2009, a one-time benefit is provided for certain Philippine veterans to be paid from the Filipino Veterans Equity Compensation Fund. American Recovery and Reinvestment Act (Act) § 1002, Pub. L. No. 111-5. Payments for eligible persons are either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Section 1002 of the Act addresses payments to eligible persons who served in the USAFFE during World War II, providing in § 1002(c)(1) that the Secretary 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 this Act (February 17, 2009, through February 16, 2010), submits to the Secretary a claim for benefits under this section. The application for the claim shall contain such information and evidence as the Secretary may require. Section 1002(c)(2) provides that, if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person. An eligible person under Section 1002(d) of the Act 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 Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable. The RO attempted to verify whether the appellant had participated in qualifying service for the benefit sought. The NPRC reported in March 2012, that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States. The appellant has submitted multiple documents purporting to show that he served with the USAFFE, and as a recognized guerillas, to include an AGNR2, Certification from the Office of the Adjutant General of the Armed Forces of the Philippines, dated in August 2000, which confirms the appellant's service in the Armed Forces of the Philippines from April 1947 to December 1976. He also submitted a copy of the Special Order from Headquarters 10th Battalion Combat Team, PEFTOK, PAPO 6000 dated in April 1951, along with a copy of an AGW3, Application Form for Campaign Medals, Ribbons and Badges. Additionally, the record contains statements from the appellant recounting his World War II and Korean Conflict experiences, wherein he asserts he served as a guerrilla member from 1944 to 1945. Finally, he submitted a copy of an Armed Forces of the Philippines Retired Enlisted Personnel identification card and a copy of a photograph. The documents from the Philippine government fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The documents are not official documents from the United States service department, but rather are documents generated by the Philippine government. As such, those documents may not be accepted by the RO or the Board as verification of service for the purpose of determining eligibility for VA benefits, including the one-time payment from the Filipino Veterans Equity Compensation Fund. Moreover, documents submitted by the appellant confirm his service with the Armed Forces of the Philippines after April 1947. The documents fail to show that the appellant served in any U.S. recognized capacity prior to April 1947 or during World War II. While testifying under oath during his February 2013 hearing, the appellant stated that from 1944 to 1945, when he was 17 years old, he was unofficially recruited to serve with a guerilla he identified as Charlie Company 121st Battalion. He did not serve as a regular guerrilla member because of his young age and as such there would be no official record of the claimed service. Based on the appellant's testimony, there is no reasonable possibility that further development for verification of service with the NPRC for the claimed time period would substantiate the appellant's claim of qualifying service for the benefit sought, as the appellant has denied the existence of any verifiable service and he has not provided documentation to support his allegation. As noted, the 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. See NPRC verification dated in February 2012. The Board acknowledges his arguments to the contrary claiming that he had the requisite service. However, the Board is not free to ignore the certification of the NPRC. 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). 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 from the United States, administered by VA. The submitted oaths are also not sufficient for benefits from the United States, administered by VA. This department 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. The appellant may not, therefore, be considered an eligible person for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. 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