Citation Nr: 1319602 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 11-24 471 ) 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 J. M. Kirby, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal is 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). FINDINGS OF FACT In February 2010 and April 2013, 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 Armed Forces of the United States. CONCLUSION OF LAW The criteria for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); 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 The United States Court of Appeals for Veterans Claims has held that when, as here, the law and not the evidence is dispositive of the claim, VA's duties to notify and to assist 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). However, in Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit held that, pursuant to both 38 C.F.R. § 3.203(c) and VA's statutory duty to assist, new evidence submitted in support of a request for verification of service from the service department must be submitted to the service department for review. After the initial denial was made in this case, the appellant submitted additional documents based on which she claimed service in the recognized guerrillas of the Philippine Commonwealth Army, and these were forwarded to the NPRC to ensure compliance with Capellan. In its April 2013 response, the NPRC again concluded that even after reviewing the newly submitted evidence, the appellant did not have qualifying service; the RO notified the appellant of this in the April 2013 Supplemental Statement of the Case. As the appellant has submitted no additional documentary evidence, there is no duty under Capellan to obtain an additional certification of service. Id. 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. VAOPGCPREC 5-2004. As there is no legal entitlement to the benefits claimed, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim. Thus, any deficiencies of notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). 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. 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 the Act prohibits 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 that 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 (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 her original claim, the appellant asserted honorable service in the recognized guerrillas of the Philippine Army from October 1944 to April 1945. However, the appellant's pertinent information, including name, date of birth, place of birth, cited dates of service, and branch of service was submitted to the NPRC, who certified in February 2010 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. After the appellant submitted additional documentation in November 2010, an additional request for verification was sent to the NPRC in January 2013, who again certified in 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. The appellant did not submit a Department of Defense Form 214, Armed Forces of the United States Report of Transfer of Discharge (DD-214), or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1). The appellant's Philippine Army service certification document does not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as it is not an official document of the appropriate United States service department, but rather a document from the Philippine government. As such, that document 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. In sum, the NPRC has certified that the appellant had no qualifying 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 any claimant, 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. 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 benefits administered by VA. This department is bound to follow the certifications by the service departments with jurisdiction over United States military records. The record does not reflect that the appellant had qualifying service. On that basis, she does not meet the basic eligibility criteria for 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