Citation Nr: 1319372	
Decision Date: 06/14/13    Archive Date: 06/21/13

DOCKET NO.  11-25 504	)	DATE
	)
	)

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


THE ISSUE

Whether the appellant is a Veteran for the purpose of establishing entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.


ATTORNEY FOR THE BOARD

B. Berry, Counsel


INTRODUCTION

This appeal to the Board of Veterans' Appeals (Board) arose from an August 2011 decision.  The RO received a notice of disagreement from the appellant in November 2010.  The RO issued a statement of the case in July 2011, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2011.  

The Board notes that in April 2013 the Veteran resubmitted a copy of AGO PA Form 23, Affidavit for Philippine Army Personnel, dated in September 1945.  Form 23 has been previously considered in the adjudication of the Veteran's claim by the RO.  Therefore, the evidence received in April 2013 is redundant and cumulative of evidence previously considered by the RO and it will not refer this evidence to the agency of original jurisdiction.  See 38 C.F.R. § 20.1304(c) (2012).

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.  All notification and development action needed to fairly adjudicate the matter herein decided has been accomplished.

2.  The National Personnel Records Center (NPRC) has certified that the appellant had no requisite military 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 FVEC 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 Feb. 17, 2009); 38 C.F.R. § 3.203 (2012).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

VCAA is not applicable to cases, such as this one, in which the law is determinative of the issue on appeal.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002).  See also Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  As such, VA is not required to address efforts to comply with the VCAA.  Nonetheless, the Board has reviewed the case for purposes of ascertaining that the appellant has had a fair opportunity to present arguments and evidence in support of his claim.  As discussed below, the appellant has submitted evidence in support of his claim which the RO, in turn, reviewed and developed, as necessary.  

II. Analysis

Under the American Recovery and Reinvestment Act, 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 § 1002, Pub. L. No. 111-5 (enacted Feb. 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.

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; as well as 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 such service under conditions other than dishonorable.  Pub. L. No. 111-5, § 1002(d), 123 Stat. 115 (2009).

The Act directs VA to administer the provisions of this section in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and shall apply the definitions in section 101 of such title in the administration of such provisions, except to the extent otherwise provided in this section.  Pub. L. No. 111-5, 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 the VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a) (2012).  When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c) (2012).

The RO received the appellant's application for the one-time payment from the FVEC Fund in April 2009.  The appellant does not contend that he served in the organized military forces of the Government of the Commonwealth of the Philippines, or in the Philippine Scouts.  Rather, he asserts that he served with the Commonwealth of the Philippines as a recognized guerrilla.  Specifically, the appellant contends that he served in the guerrilla forces as a member of the 2nd MP Company, 1st Anderson Battalion from January 1943 to September 1945.  

The claims file contains several documents in support of the appellant's claim.  Those documents include : appellant's affidavit of service, a copy of Registry of Birth from the Office of the Local Civil Registrar dated in March 2009, a certification from the Armed Forces of the Philippines, Office of the Adjutant General dated in March 2009, AGO PA Form 23, Affidavit for Philippine Army Personnel, dated in September 1945, a certification from the Philippines Veterans Affairs Office dated in December 1980 that according to the records available the appellant is a Veteran of World War II, who served with the MP Company, Anderson's Command with date of recognition on June 1945 and with a revised date of recognition on July 1942, Proof of Service dated in March 1978 and Philippine Army certificate of release from active duty dated in September 1945.  The record also includes the following identification cards: Republic of the Philippines Office for Senior Citizens Affairs, Veterans Federation of the Philippines, VA file number card and postal identity card.  The documents listed above, however, do not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as none are an official document of the appropriate United States service department or NPRC.  Accordingly, they may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including the one-time payment from the FVEC Fund.  See 38 C.F.R. § 3.203.  

The RO submitted a request to the NPRC for verification in September 2009.  Although the Veteran had submitted AGO PA Form 23 and it was associated with the claims file, the request submitted by the RO indicated that AGO PA Form 23 was not on file.  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 in October 2009.  

The RO sent a second request to the NPRC for verification in April 2010 and included a copy of AGO PA Form 23.  Thereafter, 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 in July 2010.  

The RO sent a third request for verification of service to the NPRC in January 2013.  The request included a Certification from Philippine Veterans Affairs Office for proof of service dated in March 1978, an affidavit attested by the appellant and a certification from the Armed Forces of the Philippines, Office of the Adjutant General dated in March 2009.  The NPRC responded in March 2013 that no change was warranted in the prior negative certification.  

Significantly, the appellant has not submitted a Certification of Release or Discharge from Active Duty (DD Form 214) or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1) at any time during this appeal.  The NPRC has duly considered the appellant's application for VA benefits and repeatedly certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas.  The Board notes that this verification is binding on VA such that VA has no authority to change or amend the finding.  See Duro v. Derwinski, 2 Vet App. 530, 532 (1992).  See also Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the United States service department does not verify claimed service, the applicant's only recourse lies with the relevant service department, not VA).  Moreover, recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits 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 foregoing, the Board concludes that the appellant had no qualifying service and, as such, does not meet the requisite legal requirements for obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund.  Accordingly, the appellant's claim for benefits must be denied.
ORDER

Recognition as a Veteran for the purpose of establishing entitlement to a one-time payment from the FVEC Fund is denied.



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs