Citation Nr: 1319604 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 11-24 391 ) 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 (FVEC) Fund. ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION This appeal to the Board of Veterans' Appeals (Board) arose from a January 2010 decision in which the RO denied the appellant's claim for a one-time payment from the FVEC 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 National Personnel Records Center (NPRC) 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. CONCLUSION OF LAW As the criteria for basic eligibility for a one-time payment from the FVEC Fund are not met, the claim is without legal merit. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012). In connection with the claim on appeal, the appellant has been notified of the reasons for the denial of the claim, and has been afforded the opportunity to present evidence and argument with respect to the claim. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the appellant. As will be explained below, the claims lack legal merit. As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). See also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (noting that the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter). Nevertheless, the Board notes that the RO provided notice to the appellant in February 2013 that informed him what was required to substantiate his claim and the respective duties of VA and the appellant. II. Analysis Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009). For eligible persons who accept a payment from the FVEC Fund, the 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 the Act. Id. § 1002(h). VA 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 the Act, submitted to VA a claim for benefits under the Act. The application for the claim shall contain the information and evidence VA requires. Id. § 1002(c). 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 a 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 such service under conditions other than dishonorable. Id. § 1002(d). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012). See Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department; not with VA. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203 (2012); Soria, supra. In a claim, received in July 2008, the appellant provided identifying information and contended that he was eligible for a one-time payment from the FVEC fund as a result of recognized guerilla service. In associated statements, he reported that he had had service with the Base "M" Transportation Corps APO 74-2; Bolo Unit, "A" Co, 1st Bn, 121st Inf. USAFIP_NL, Transportation Division; 538th Btry "A," PA Bn; Army Transportation Corp 838 Field Artillery Bn BM Poro Pt/Transportation Corps; Transportation Div Artillery Bn/BM TH; BM BM APO 74-2; and the High Transportation Division Highway Transport Svc, 869. In connection with his claim, and throughout the course of his appeal, the appellant submitted a number of documents in support of his claim, to include a War Department Notification of Personnel Action showing that he was separated from service in July 1947 due to a reduction of force. Additionally, there is an Individual Earnings Record Card showing that the appellant was attached to 538th Btry A, FA BN of the Transportation Corps., and an August 1957 letter from a Captain, Infantry, Motor Officer from Headquarters, Base "M" Transportation Corps. certifying that the appellant was employed as a carpenter's foreman for two years and four months. In May 2009 and May 2010, the RO requested verification of service by the applicable United States service department using the spelling of the appellant's full name, his reported aliases, his place and date of birth, reported dates of service, and the unit designations provided in his supporting documents. In October 2010, the RO requested verification of his service again but submitted a copy of his personal record and certification from Headquarters dated August 1947, and notification of personnel action attached for review. In February 2013, the RO requested verification of service with Base "M" Transportation Corps APO 74-2; Bolo Unit, "A" Co, 1st Bn, 121st Inf. USAFIP_NL, Transportation Division; 538th Btry "A," PA Bn; Army Transportation Corp 838 Field Artillery Bn BM Poro Pt/Transportation Corps; Transportation Div Artillery Bn/BM TH; BM BM APO 74-2; and the High Transportation Division Highway Transport Svc, 869. On each occasion, the NPRC responded 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. As noted above, the appellant has submitted statements and documentation pertaining to his reported service in the recognized guerillas in an effort to support her claim. However, none of that documentation or lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203 (2012). On the contrary, that evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought. Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the FVEC Fund. NPRC has duly considered the appellant's application for VA benefits, along with all the material he has submitted, and has certified the he 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 Board is bound by that certification. See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (noting that if the service department does not verify the applicant's claimed service, the applicant's only recourse lies within the service department, not with VA). The Board is sympathetic to the appellant's situation, and does not question the sincerity of his belief that he is entitled to the benefit he seeks. However, the pertinent legal authority governing entitlement to payments from the FVEC Fund is clear and specific: It must be shown by verification of the United States service department that the claimant has qualifying service. The Board is bound by the law as written. As, on these facts, there is no legal theory that would permit a one-time payment from the FVEC Fund, the appellant's claim must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The claim for a one-time payment from the FVEC Fund is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs