Citation Nr: 1319589 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 10-48 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied entitlement to one-time payment from the FVEC Fund. 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) 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 requirements for payment from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. § 101 (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5, 123 Stat. 115, 200-202 (February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application for benefits, VA is required to provide notification and assistance to a claimant in substantiating a claim. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). Where the appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA must inform the appellant of the information or evidence necessary to prove Veteran status. Palor v. Nicholson, 21 Vet. App. 325 (2007). The appellant was provided a letter dated in January 2012, which included a description of the requirements for establishing entitlement to payment under the FVEC, and notified the Veteran of the specific service requirements. Additional notice was provided in the September 2010 statement of the case, which discussed the evidence received from the appellant, and the RO's requests to verify the claimed service. He was specifically informed that his documents did not satisfy the requirements, because they were not issued by a United States military service department. The Board finds that any notification errors are not prejudicial because the appellant is not entitled to the benefit as a matter of law. Valiao v. Principi, 17 Vet. App. 229 (2003); Palor v. Nicholson, 21 Vet. App. 325 (2007). All identified evidence relative to this claim has been obtained and associated with the claims file. In a statement received in August 2010, the appellant stated that he would like an "appointment" to clarify things, because he had questions and was confused about the letters he was receiving. Although the RO did not directly respond to that letter, the above correspondence was sent after this letter. Moreover, in his substantive appeal, the appellant requested a Board hearing at the RO, but he failed to report for that hearing, scheduled for February 2013. Therefore, the Board finds that the duty to assist has been satisfied. The Board finds that no further notification or development action is necessary on the issue now being decided. No reasonable possibility exists that any additional assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The duty to notify is not applicable to matters in which the law, and not the evidence, is dispositive. Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board finds that the appellant's appeal must be denied as a matter of law. The appellant claims that he is entitled to a one-time payment from the FVEC Fund, based on World War II service as a Recognized Guerrilla. Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain eligible Philippine veterans to be paid from the FVEC Fund. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). An eligible person is any person who 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ); and was discharged or released from service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). For the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, 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 those requirements, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c) (2012). Here, the appellant stated, in his claim received in May 2009, that he was born in April 1928, and that he served as a recognized guerrilla in the 1st Pampanga Regiment Command RC-7, Squadron 11-A, from May 1942 to April 1945. In support of his claim, he submitted a copy of a Philippine Veterans Affairs Office (PVAO) Statement of Service form that he completed in June 1981. He said that he had used an alias during service and provided that name. He said he had joined Squadron 11-B in May 1942 in the First Pampanga Regiment Command RC-7. He said that in April 1944 he served with the Hukbalahap, and in December 1944, with Squadron 11-A. He reported that, initially, he was assigned as a runner and courier, and also spied on the location of the enemies and their activities. He said that in 1944 he was assigned as a combatant and participated in some operations against the Japanese forces. He was discharged from service in June 1945. The appellant also submitted a copy of an application for a PVAO old age pension, dated in December 1992. In this application, the appellant stated that he had served in World War II as a guerrilla. He stated that he had been born in April 1928, and was discharged from service in December 1945. He stated that his last unit assignment was Squadron 11-A, 1st Pamp. Rgmt. Evidence of record includes a copy of the front page of a passbook for an account with the Philippine Veterans Bank, and various identification cards. However, none of those documents were issued by a United States service department. In November 2009, the RO requested that the National Personnel Records Center (NPRC) verify the claimed service and noted also that the claimant's name was not listed in the Reconstructed Recognized Guerrilla Roster maintained at the Manila RO. The NPRC responded, in February 2010, certifying that he 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. In July 2010, the RO again filed for verification by NPRC, this time with the Veteran's claimed alias included, and his established name. Again, in September 2010, the NPRC responded, certifying 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. A third request was made to the NPRC in January 2012, accompanied by copies of the documentation submitted by the appellant. In February 2012, the NPRC again certified 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. Thus, the NPRC has certified, on three 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. 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. Venturella v. Gober, 10 Vet. App. 340 (1997); Dacoron v. Brown, 4 Vet. App. 115 (1993); Duro v. Derwinski, 2 Vet. App. 530 (1992). Moreover, where the United States service department does not certify the claimant's alleged service in the Philippine Army, VA cannot consider a claim for Veterans' benefits based on that service. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). The Board has carefully considered the documentation submitted by the appellant, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The documents submitted by the appellant were not issued by a United States service department, nor do they contain the necessary information to establish entitlement to the benefit sought. The Board is bound by the service department's certification. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA). As the service department has certified that the appellant did not have the requisite service to qualify for payment from the Filipino Veterans Equity Compensation Fund, the appeal must be denied. Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426 (1994). In reaching this conclusion, the Board remains sympathetic to the appellant and does not question the sincerity of his belief that he is entitled to VA benefits, specifically in the form of payment from the FVEC Fund. Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C.A. § 7104 (West 2002 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994). ORDER Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs