Citation Nr: 1319590	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  10-40 766A	)	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.


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 decision of 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.

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 service department 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 during World War II.


CONCLUSION OF LAW

The appellant does not have the requisite service to establish entitlement to payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

However, the United States Court of Appeals for Veterans Claims (Court) has held that when the law as mandated by statute, and not the evidence, is dispositive of the claim, the above provisions are not applicable.  See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002).  Additionally, VA's General Counsel held in a precedential opinion that there is no duty to notify a claimant where the claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit and no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim.  See VAOPGCPREC 5-2004 (June 23, 2004). 

For reasons that will be explained in more detail below, the Board finds that there is no legal entitlement to the benefits claimed.  Thus, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim.  See Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim).  Regardless, the appellant was provided appropriate notice as to the information and evidence necessary to substantiate the claim in a January 2013 letter.  The claim was subsequently readjudicated in March 2013.  See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006) (VA can cure a timing problem by readjudicating the claim following a compliant VCAA notification letter).

The record also reflects that VA has made reasonable efforts to obtain relevant evidence.  Specifically, the RO provided the evidence submitted by the appellant to the National Personnel Records Center (NPRC) to attempt to verify the appellant's claimed service.  The NPRC's responses are of record. 

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.  See 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 (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.

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 March 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.  The NPRC's search encompassed the years 1943 to 1945, as requested by the appellant in his May 2009 claim.  In March 2013 and April 2013, NPRC took into account additional evidence provided by the appellant, and expanded its search dates to include service as of December 17, 1942, but found that no change was warranted in the prior negative service certification.

The appellant did not submit a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1).  The affidavits of the appellant and his colleagues, the documents from the Republic of the Philippines and the Fifth Military District "F" Company, and the other evidence of record submitted by the appellant fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department.  As such, those documents 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 Filipino Veterans Equity Compensation Fund.

The NPRC certified in March 2010, March 2013, and April 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.  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, who 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.  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 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 a veteran 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.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs