Citation Nr: 1319758 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 12-16 468 ) 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. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and M. C. ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision in January 2010 of a Department of Veterans Affairs (VA) Regional Office (RO) that determined that the appellant had no legal entitlement to a one-time payment from the FVEC fund. In January 2013, the appellant testified at a Travel Board hearing at the RO. 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 The criteria for eligibility to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) fund have not been met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2009); 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 Duty to Notify and Assist The Board has considered whether the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002), is applicable to this claim. Because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004). Accordingly, there is no prejudice toward the appellant in proceeding with the adjudication of his claim and no further need to discuss VCAA duties. Analysis The American Recovery and Reinvestment Act authorized a one-time benefit 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 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 (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 cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Thus, if the United States service department refuses to verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria, 118 F.3d at 749. In short, under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies their service. Soria, 118 F.3d at 749. The appellant claims that he is entitled to a one-time payment from the FVEC fund. He essentially alleges that he served with the Philippine Commonwealth Army, USAFFE (U.S. Armed Forces, Far East) from March 1942 to January 1947. He also contends that he had recognized guerilla service. A February 1946 Affidavit for Philippine Army Personnel noted that the appellant reported that he had USAFFE and guerilla service. The appellant indicated that he was presently serving with the Service Company, 52nd Infantry Regiment, APO 715. He indicated that he was inducted into the USAFFE in March 1942, and that he served with "B" QM, 61st Infantry, 61st Division, from March 1942 to April 1942. He stated that he was a civilian from April 1942 to October 1942, and that he served with the Regt'l MT 64th Infantry Regiment from November 1942 to May 1945. The appellant further reported that he served with the Regt'l MT 66th Infantry Regiment from June 1943 to May 1945, and that he was processed in May 1945. The appellant indicated that he was a corporal and that his serial number was [redacted]. A December 1946 lay affidavit from M. P., Jr., related that he was the overall commander of areas comprising the Headquarters, 6th Military District, and that the appellant was a corporal with a serial number of [redacted]. He reported that the appellant was inducted as a private in March 1943 pursuant to the Division Motor Transport. He stated that the appellant served with the Regt'l, MT 64th Infantry Regiment from November 1942 to April 1943, and that he served with the Regt'l MT 66th Infantry Regiment from April 1943 to June 1945. It was noted that the appellant was processed in May 1945. A lay affidavit from B. L., with an illegible date, noted that he was the commanding officer of the defunct Motor Transport Company, 61st Division. He stated that the appellant was inducted as a private in the USAFFE in March 1942 and that he was never separated from his unit until the landing of the liberation forces in the early part of March 1945. He indicated that the appellant was only separated from the guerillas for the purposes of returning to military control in May 1945. A January 1947 Extract from the Headquarters Army of the Philippines, Camp Murphy, Quezon, Philippines, indicated that the appellant served with the 1st Depot Supply Squadron, Philippine Air Force, Port Area, Manila, Philippines, and that he was honorably discharged. His serial number was listed as [redacted]. An October 1947 report from the Commonwealth of the Philippines, Philippine Army, indicated that the appellant served as a private with the 1st Depot Supply Squadron, Philippine Air Force. It was noted that the appellant enlisted in March 1942 with the "B" QM 61st Division, Philippine Army, to serve three years and that he was honorably discharged in January 1947. A September 1986 statement from an assistant adjutant general in the Philippine Army related that the appellant's date of birth was September [redacted], 1921, and that his place of birth was Panitan, Capiz, Philippines. It was noted that the appellant was inducted into the USAFFE in March 1942. The assistant adjutant general indicated that the appellant was paid in arrears as a private from March 1942 to April 1942, that he was in no casualty status from April 1942 to October 1942, and that he was paid as a corporal from November 1942 to May 1945. It was further indicated that the appellant was currently paid as a corporal from May 1945 to January 1946, that he was paid as a private from April 1946 to June 1946, and that he was processed in May 1945. The assistant adjutant general stated that the appellant was honorably discharged in January 1947, and listed his serial number as [redacted]. A December 1990 Application for Old Age Pension with the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office, noted that the appellant reported that he had USAFFE and guerilla service with "B" QM 61st Division. The appellant stated that he was discharged in January 1947. He reported that he was a corporal, that his serial number was [redacted], and that his date of birth was September [redacted], 1921. An August 1991 statement from the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office, indicated that the appellant was a veteran of the World War II/Philippine Revolution and that he served with "B" Company, QM 61st Infantry, 61st Division, Philippine Army. It was noted that the appellant had USAFFE service, that he served as a corporal, and that his serial number was [redacted]. A November 1992 certification from the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office, indicated that the appellant was a regular pensioner. A November 1992 certification from the Armed Forces of the Philippines, General Headquarters, Camp General Emilio Aguinaldo, related that the appellant served with "B" QM 61st Infantry, 61st Division (F-23). It was reported that the appellant was inducted in March 1942 and that he was discharged in January 1947. The appellant's date of birth was listed as September [redacted], 1921, and his place of birth was listed as Panitan, Capiz, Philippines. The appellant's military status was listed as USAFFE. It was reported that the appellant was paid in arrears as a private from March 1942 to April 1942, that he was in no casualty status from April 1942 to October 1942, and that he was paid as a corporal from November 1942 to May 1945. It was further indicated that the appellant was currently paid as a corporal from May 1945 to January 1946, and that he was paid as a private from April 1946 to June 1946. The appellant's serial number was listed as [redacted]. An August 1993 Certification of Military or Naval Service from an assistant adjutant general at Camp General Emilio Aguinaldo indicated that the appellant entered service in March 1942 with "B" QM 61st Infantry, 61st Division, and that he was honorably discharged in January 1947. The Certification of Military or Naval Service specifically noted that the appellant was inducted into the USAFFE in March 1942 and that he was assigned to "B" QM 61st Infantry, 61st Division (F-23). It was reported that the appellant was paid in arrears as a private from March 1942 to April 1942, that he was in no casualty status from April 1942 to October 1942, and that he was paid as a corporal from November 1942 to May 1945. It was further indicated that the appellant was currently paid as a corporal from May 1945 to January 1946, that he was paid as a private from April 1946 to June 1946, and that he was processed in May 1945. The appellant's serial number was listed as [redacted]. A January 1995 statement from the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office, indicated that the appellant was a veteran of the World War II/Philippine Revolution and that he served with, 61st Division in the Philippine Army. It was noted that the appellant had USAFFE service and that he served as a corporal. In February 2009, the appellant filed his claim for legal entitlement to a one-time payment from the FVEC fund. He reported that he served with the Philippine Commonwealth Army, USAFFE, from March 1942 to January 1947. He also stated that he served with the 52nd Infantry Regiment APO 715. The appellant listed the names of his mother and father, as well as the name of his spouse. He indicated that his date of birth was September [redacted], 1921, and that his place of birth was Capiz, Philippines. The appellant reported that his service number was [redacted]. In a September 2009 statement, the appellant indicated that records show that his name was listed as [redacted] or [redacted]. The appellant stated that he served from March 1942 to January 1947 and that his serial number was [redacted]. In November 2009, the RO requested verification of the appellant's service from the National Personnel Record Center. The RO reported that the appellant alleged that he had recognized guerilla service from March 1942 to June 1946, and that he served with the 52nd Infantry Regiment APO 715. His date of birth was listed as September [redacted], 1921, and his place of birth was listed as Capiz, Philippines. The names of the appellant's mother and father, as well as his spouse, were all listed. The RO reported that the appellant served under the name of [redacted]. The appellant's service number was listed as [redacted]. The RO indicated that that the appellant's name was not listed in the Reconstructed Recognized Guerilla Roster maintained at the RO. In a December 2009 response to the November 2009 request for verification of the appellant's service, 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. In May 2010, the RO requested verification of the appellant's service from the National Personnel Record Center. The RO reported that the appellant alleged that he had USAFFE service from March 1942 to June 1946, and that he served with the Service Company, 52nd Infantry Regiment APO 715. His date of birth was listed as September [redacted], 1921, and his place of birth was listed as Panitan, Capiz, Philippines. The names of the appellant's mother and father, as well as his spouse, were all listed. The RO reported that the appellant served under the name of [redacted], and that an additional name under which the appellant may have served was [redacted]. The appellant's service number was listed as [redacted]. The RO indicated that that the appellant's name was not listed in the Reconstructed Recognized Guerilla Roster maintained at the RO. In a June 2010 response to the May 2010 request for verification of the appellant's service, 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. In July 2011, the RO requested verification of the appellant's service from the National Personnel Record Center. The RO reported that the appellant alleged that he had USAFFE and recognized guerilla service from March 1942 to January 1947. The RO indicated that the appellant maintained that he served with Supply Depot, 61st Infantry, 61st Division; the 62nd Division; "B" QM 61st Infantry, 61st Division; 6th MD; Regt'l MT, 64th Infantry Regiment; Regt'l MT 66th Infantry Regiment; 1st Depot Supply Squadron, Philippine Air Force; Port Area, Manila, Philippines; QMS; "B" Company, QM 61st Infantry, 61st Division, Philippine Army; and the U.S. Army Forces, Western Pacific (AFWESPAC). His date of birth was listed as September [redacted], 1921, and his place of birth was listed as Panitan, Capiz, Philippines. The names of the appellant's mother and father, as well as his spouse, were all listed. The RO reported that the appellant served under the name of [redacted], and that an additional name under which the appellant may have served was [redacted]. The appellant's service number was listed as [redacted]. The RO indicated that that the appellant's name was not listed in the Reconstructed Recognized Guerilla Roster maintained at the RO. In an October 2011 response to the July 2011 request for verification of the appellant's service, 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. At the January 2013 Board hearing, the appellant testified that he served with the 61st Infantry Division from March 1942 to January 1947. He stated that he had USAFFE service. The Board finds that the appellant does not legally qualify for a one-time payment from the FVEC fund. As discussed above, the NPRC has specifically certified, on numerous occasions, that 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. In light of the above, the February 1946 Affidavit for Philippine Army Personnel; the January 1947 Extract from the Headquarters Army of the Philippines, Camp Murphy, Quezon, Philippines; the October 1947 report from the Commonwealth of the Philippines, Philippine Army; the September 1986 statement from an assistant adjutant general in the Philippine Army; the November 1992 certification from the Armed Forces of the Philippines, General Headquarters, Camp General Emilio Aguinaldo; and the August 1993 Certification of Military or Naval Service from an assistant adjutant general at Camp General Emilio Aguinaldo; as well as the lay affidavits, and multiple statements and certifications from the Philippine Veterans Affairs Office, all submitted by the appellant, fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as the certification is not an official document of the appropriate United States service department, and is without the official seal. The documents, therefore, are not acceptable as verification of the appellant's service for the purpose of receiving VA benefits. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). 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 the VA Secretary's statutory duty to assist (as set forth in 38 U.S.C.A. § 5103A), new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review. The Board notes, however, that in this case, any new evidence submitted by the appellant is duplicative of his contentions of service (i.e., USAFFE service and recognized guerilla service) previously considered by the service department (NPRC). In multiple searches following additional information submitted by the appellant as to his alleged USAFFE and recognized guerilla service, the NPRC has specifically indicated that the appellant did not have the necessary service in this matter. The appellant's plight is acknowledged. In this case however, the service department has determined 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. Where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Because the appellant's service does not meet the criteria described, the appellant does not meet the basic eligibility requirements for a one-time payment from the FVEC fund, and the claim must be denied based upon a lack of entitlement under the law. ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation fund is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs