Citation Nr: 1319376 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 11-30 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant has legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) fund. ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c) (2012), the appeal has been advanced on the Board's docket. This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision in January 2010 of a Department of Veterans Affairs (VA) Regional Office (RO) that determined that the appellant had no legal entitlement to a one-time payment from the FVEC fund. 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 United States Armed Forces. CONCLUSION OF LAW The criteria for eligibility to a one-time payment from the Filipino Veterans Equity Compensation fund have not been met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2009); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has considered whether the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002), is applicable to this claim. Because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004). Accordingly, there is no prejudice toward the appellant in proceeding with the adjudication of his claim and no further need to discuss VCAA duties. Analysis The American Recovery and Reinvestment Act authorized a one-time benefit 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 February 17, 2009). For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service ...." However, nothing in this act "prohibit[s] a person from receiving any benefit (including health care, survivor, or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of this Act." Section 1002 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II. Section 1002 (c)(1) provides 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, 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 (d) provides that an eligible person 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. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Thus, if the United States service department refuses to verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria, 118 F. 3d at 749. In short, under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies their service. Soria, 118 F. 3d at 749. The appellant claims that he is entitled to a one-time payment from the FVEC fund. He essentially alleges that he had recognized guerilla service from April 1943 to September 1945. A December 1997 certification from the Armed Forces of the Philippines, General Headquarters, Office of the Adjutant General, noted that the appellant served with 11th Company, 108th Division. It was reported that the appellant joined in April 1943 and was released in September 1945. The appellant's military status was listed as guerilla. In March 2009, the appellant filed his claim for legal entitlement to a one-time payment from the FVEC fund. He reported that he had recognized guerilla service from April 1943 to September 1945. The appellant listed the names of his mother and father, as well as the name of his spouse. He indicated that his date of birth was July 6, 1919, and that his place of birth was Masiu, Lanao, Del Sur, Philippines. In November 2009, the RO requested verification of the appellant's service from the National Personnel Records Center (NPRC). In a December 2009 response to the request for verification of the appellant's service, the NPRC reported 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. Following receipt of the appellant's notice of disagreement and substantive appeal, in January 2013 the RO again requested verification of the appellant's service from the NPRC. In a March 2013 response to the January 2013 request for verification of the appellant's service, the NPRC reported that no change was warranted in the prior negative service certification. The appellant does not legally qualify for a one-time payment from the FVEC fund. The NPRC has specifically certified, on two occasions, 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 December 1997 certification from the Armed Forces of the Philippines, General Headquarters, Office of the Adjutant General, submitted by the appellant, fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as the certification is not an official document of the appropriate United States service department, and is without the official seal. The document, therefore, is not acceptable as verification of the appellant's service for the purpose of receiving VA benefits. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). The service department has twice determined 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. Where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) fund is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs