Citation Nr: 1319523 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 10-48 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant is a Veteran for the purpose of establishing legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant claims qualifying service with the United States Armed Forces from August 1944 to May 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 administrative decision of the Manila, the Republic of the Philippines Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the case was remanded for additional development. 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 verified that the appellant did not have 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 establishing Veteran status and legal entitlement to a one-time payment from the FVEC Fund are not met. 38 U.S.C.A. §§ 101, 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA need not be considered because the issue presented is solely one of statutory interpretation (and the claim by this claimant is barred as a matter of law). See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). In connection with the instant claim the appellant provided additional information regard alleged qualifying service. The Board sought Service Department recertification of the appellant's service/nonservice to encompass the additional information. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the appellant's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. The appellant seeks entitlement to the one-time payment from the FVEC Fund. This issue involves the critical legal criterion of requiring evidence establishing that the appellant is a "Veteran" for VA purposes. This determination rests on the nature of his military service. The appellant contends that he served with a unit that should be recognized as establishing legal entitlement to the one-time payment from the FVEC Fund. The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). A one-time benefit is provided for certain Philippine veterans to be paid from the "FVEC Fund." American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 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. For eligible persons who accept a payment from the FVEC 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." Id. 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(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. Id. 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. Id. In January 2010, 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. Using different permutations of the appellant's name, additional units of service identified, different permutations of the name of a commanding officer, and different versions of the appellant's place of birth, the NPRC confirmed in March 2010, January 2011, and March 2013 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 appellant has submitted copies of documents related to his service, including various identification cards, a newspaper article, multiple affidavits from comrades, certifications from the Philippine Veterans Affairs Office (PVAO), a service discharge order, and a certification from the Veterans Federation of the Philippines. These documents do not establish qualifying service for the purpose of establishing Veteran status, as they cannot overcome a Service Department certification (that encompasses the information provided) that the appellant had no service in the services of the United States Armed forces. . The NPRC has certified four times that the appellant had no qualifying service with the United States Armed Forces (including based on all of the information cited above). This certification 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 entitlement to the one-time payment from the FVEC Fund. VA is bound to follow the certifications by the service departments with jurisdiction over United States military records. As 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, he is not a Veteran, and lacks basic eligibility to a one-time payment from the FVEC Fund. ORDER The appeal to establish Veteran status and legal entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs