Citation Nr: 1319757 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 11-20 329 ) 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 Fund. ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 administrative decision of the VA Regional Office (RO) in Manila, Philippines, which denied the claim on appeal. 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 Armed Forces of the United States. 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. § 501(a) (West 2002); 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 FINDINGS AND CONCLUSION I. Duties to Notify and Assist As set forth in more detail below, 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 U.S. Armed Forces during World War II. VA is bound by this certification. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997) ("The U.S. Court of Appeals for the Federal Circuit's (Federal Circuit) decision recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive and binding on VA."). In light of the binding certification, any VCAA notification error is non-prejudicial as the appellant is not entitled to the benefit as a matter of law. See Valiao v. Principi, 17 Vet. App. 229 (2003). The VCAA need not be considered because the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). As discussed below, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits. The VCAA is therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). II. Analysis 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 called into the service of the United States Armed Forces of the Far East by President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that the service of certain Filipino veterans does not entitle them to receive full benefits administered by the Secretary U.S. Department of Veterans Affairs. 38 U.S.C.A. § 107 (West 2002). On February 17, 2009, the President signed the American Recovery and Reinvestment Act, intended for "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization." See Pub. L. No. 111-5, 123 Stat. 115 (2009). The legislation included a provision for the creation of the Filipino Veterans Equity Compensation Fund, providing one time payments to "eligible persons" in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). 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 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. The Act further directs the Secretary to "administer the provisions of this section in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and shall apply the definitions in section 101 of such title in the administration of such provisions, except to the extent otherwise provided in this section." Id. In this case, the National Personnel Records Center (NPRC) in December 2009 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. Based on receipt of additional evidence from the appellant, the RO requested that the NPRC again review the claim. In March 2013, the NPRC indicated that there was no change warranted in the prior negative service certification. Notably, the appellant has not submitted a DD Form 214 (or date appropriate form), 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). In support of his claim to entitlement, the appellant submitted statements indicating that he served in the Philippine Army along with various other documents: an affidavit from individuals attesting to the appellant's birthday; a copy of a birth certificate; a postal identity card; a Federation of Senior Citizens identity card; copies of an enlistment record, special order, and certificate of honorable discharge from the Philippine Army; certification from the General Headquarters of the Armed Forces of the Philippines, dated in August 2010, indicating that the Veteran was recognized by the Philippine Government as a veteran of World War II; stock certificates from the Philippine Veterans Bank; records from the Philippine Veterans Affairs Office; and photographs. The Board acknowledges the appellant's belief that he has recognized service, but there is no indication that he has additional evidence or information that may support this claim. The Board has carefully reviewed the appellant's evidentiary submissions. However, the Board finds that these documents fail 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, but rather documents from the Philippine government and individuals known to the appellant. 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 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. The Board acknowledges the appellant's argument that VA should essentially ignore the NPRC certified finding. However, the Board is not free to ignore the certification of the NPRC. 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). Recognition of service by the Philippine 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. Accordingly, the claim is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). ORDER Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs