Citation Nr: 1319593	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  10-36 654	)	DATE
	)
	)

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


THE ISSUE

Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

S. Pflugner, Counsel


INTRODUCTION

The Appellant contends that he had service with the U.S. Armed Forces, specifically recognized guerilla service, during World War II.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision by the Department of Veterans Affairs (VA) Regional Office in Manila, Republic of the Philippines (RO).  

A written statement from the appellant was received by the Board in June 2013 without waiver of RO consideration.  Although the document has not been considered by the RO in adjudication of the case, the Board notes that the appellant is not prejudiced in this regard as the statement does not contain any new information, and is essentially duplicative of argument previously of record and considered by the RO. 

This appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012).


FINDING OF FACT

The National Personnel Records Center (NPRC) has indicated 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 Appellant does not have recognized active military service for the purpose of obtaining the one-time payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. § 5101 (a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act, Section 1002, Pub. L. No. 111-5 (Enacted February 17, 2009); 38 C.F.R. § 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The provisions of the law regarding VA's duties to notify and assist have no effect on an appeal where, as here, the law, and not the underlying facts or development of the facts, is dispositive.  38 U.S.C.A. § 5103A (West 2002 & 2012); Manning v. Principi, 16 Vet. App. 534 (2002).

Historically, the Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War.  During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt.  Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941).  Current law, however, provides that many of those who served in the Philippine Islands during World War II did not have qualifying active service for the purpose of receiving VA benefits.  38 U.S.C.A. § 107 (West 2002).

The particular benefit claimed originated on February 17, 2009 with the American Recovery and Reinvestment Act (Act), to promote job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization.  Pub. L. No. 111-5, 123 Stat. 115 (2009).  That legislation established the Filipino Veterans Equity Compensation Fund, which provides one-time payments to eligible persons.  Pub. L. No. 111-5, § 1002, 123 Stat. 115 (2009).

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; and any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538).  Also, the person must have been discharged or released from service under conditions other than dishonorable.  Pub. L. No. 111-5, § 1002(d), 123 Stat. 115 (2009).

The Act further directs VA to administer the provisions in a manner consistent with applicable provisions of Title 38 of the United States Code, and other provisions of law, and shall apply the definitions in 38 U.S.C.A. § 101 in the administration of the provisions, except to the extent otherwise provided.  Pub. L. No. 111-5, § 1002, 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. 

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.  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 his claim for Veterans' benefits based on that service.  Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997). 

In March 2009, the RO received the Appellant's claim for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.  In the application, the Appellant contended that he served from November 2, 1942 to July 31, 1944, as a member of the "Blue Eagle Brigade, Company B."  No other documentation was submitted at that time.

In April 2009, the RO submitted a request to NPRC for certification or verification of the Appellant's claimed military service in the Armed Forces of the United States.  In an October 2009 response, NPRC indicated that the Appellant "has no service as a member of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Forces."  Consequently, the RO denied the Appellant's claim.  The RO sent the Appellant a notification of this decision in a December 2009 letter.

In response to the December 2009 decision and letter, the Appellant submitted various documents that were received by the RO in March 2010 purporting to show that he had the requisite service to establish basic eligibility to receive the one-time payment from the Filipino Veterans Equity Compensation Fund.  The documents include photocopies of  (1) a Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release From Active Duty or Retirement, dated on February 20, 1946, which indicated that his grade was Private First Class and that he was assigned to the Blue Eagle Brigade, Company B; (2) a January 12, 2010 Joint Affidavit, signed by two individuals, attesting to the fact that the Appellant's surname was erroneously listed in various governmental and military records; (3) photocopies of two identification cards from the individuals who signed the January 12, 2010 Joint Affidavit; (4) a January 7, 1975 letter from the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office, informing the Appellant that, by virtue of a resolution by the "Board of Administrators," he was certified as a veteran of World Word II to the Philippine Veterans Bank for purposes of entitlement to one free common share of stock; (5) a November 8, 1990 Application for Old Age Pension submitted by the Appellant to the Philippine Veterans Affairs Office, indicating his claimed rank and unit of last service; and (6) a January 25, 2010 letter from the Philippine Veterans Affairs Office certifying that the Appellant is a veteran of the Philippine Revolution/World War II, serving in the Blue Eagle Brigade, B Company, with the grade/rank of Private First Class, from November 6, 1942 to December 3, 1945.

In April 2010, the RO submitted another request to NPRC for certification or verification of the Appellant's claimed military service in the Armed Forces of the United States, to include review of the documentation submitted by the Appellant.  In a May 2010 response, NPRC again indicated that the Appellant "has no service as a member of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Forces."  As such, the denial of the Appellant's claim was confirmed and continued.

In August 2010, the Appellant submitted a substantive appeal along with an October 30, 1973 Affidavit for Philippine Army Personnel.  Therein, the Appellant described his military service in greater detail, including various unit assignments and the corresponding dates thereof.  Further, in the affidavit, the Appellant stated that, while he was assigned to the Blue Eagle Brigade, it became attached to the U.S. Army, specifically the "11th AB Div[ision]."  The affidavit also showed that the Appellant's rank was Private First Class.

In September 2010, the RO submitted another request to NPRC for certification or verification of the Appellant's claimed military service in the Armed Forces of the United States, to include review of the documentation submitted by the Appellant.  In an October 2010 response, NPRC indicated that no change was warranted from the prior negative certification.  As such, the denial of the Appellant's claim was confirmed and continued; the RO then issued the Appellant a September 2012 supplemental statement of the case.

In November 2012, the Appellant submitted two statements, and again submitted the January 25, 2010 letter from the Philippine Veterans Affairs Office and the October 30, 1973 Affidavit for Philippine Army Personnel.  Additionally, the Appellant submitted an untitled document from the Commonwealth of the Philippines, Philippine Army, demonstrating that he enlisted on November 6, 1942, held the rank of Private First Class, was assigned to the Blue Eagle Brigade, and was honorably discharged consequent to demobilization.

In December 2012, the RO submitted another request to NPRC for certification or verification of the Appellant's claimed military service in the Armed Forces of the United States, to include review of the documentation submitted by the Appellant throughout the pendency of the appeal.  

Later in December 2012, the RO sent the Appellant a letter providing him notice of the evidentiary requirements for substantiating his above-captioned claim.  

In February 2013, the RO submitted another request to NPRC for certification or verification of the Appellant's claimed military service in the Armed Forces of the United States, to include review of the documentation submitted by the Appellant throughout the pendency of the appeal.  

In a February 2013 response to the RO's December 2012 request, NPRC indicated that no change was warranted from the prior negative certification.  As such, the denial of the Appellant's claim was confirmed and continued.  The RO then issued the Appellant a March 2013 supplemental statement of the case.

In a March 2013 response (received by the RO in April 2013) to the RO's February 2013 request, NPRC indicated that no change was warranted from the prior negative certification.

The NPRC has duly considered the Appellant's application for VA benefits, including the documentation submitted by the Appellant, and has consistently certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas.  The Board is bound by those certifications.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the United States service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA).

For the foregoing reasons, the Board finds that the Appellant does not have the requisite service to qualify for a one-time payment from the Filipino Veterans Equity Compensation Fund.  Therefore, his claim for benefits must be denied. 

The Board does not doubt the sincerity of the Appellant's belief that his service qualifies as recognized guerrilla service with the American Forces during World War II.  However, a decision in this regard is not within the Board's jurisdiction, and the matter must be resolved with the service department and not VA.  The Board is bound by the law and is without authority to grant benefits on an equitable basis.  38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994).  This case is decided based on its application of the law to the pertinent facts.  Owings v. Brown, 8 Vet. App. 17 (1995); Kelly v. Derwinski, 3 Vet. App. 171 (1992) (holding that the law must be interpreted as it exists, and cannot extend benefits out of sympathy for a particular claimant).



ORDER

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs