Citation Nr: 1319903 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 10-40 444A ) 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 T. Azizi-Barcelo, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation 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). FINDINGS 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 criteria for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund are not met. 38 U.S.C.A. §§ 101(2), 107(b) (West 2002 & Supp. 2012), American Recovery and Reinvestment Act of 2009 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1(d), 3.6, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notice requirements of VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Here, though, as it is the law, not the facts, which is dispositive of this appeal, the duties to notify and assist imposed by the VCAA are inapplicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). This is because qualifying service is necessary for the award of the benefit sought. How it may be established is outlined in statute and regulation, with service department certifications of service binding on VA. No further notice or assistance could alter the outcome. The appellant contends that he had service with the United States Armed Forces in the Far East (USAFFE) and service with the recognized guerrilla service in the Philippine Commonwealth Army, from 1944 to 1946. Therefore, he asserts that he is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. Under the American Recovery and Reinvestment Act, enacted February 17, 2009, 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 (Act) § 1002, Pub. L. No. 111-5. Payments for eligible persons are either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Section 1002 of the Act addresses payments to eligible persons who served in the USAFFE during World War II, providing in § 1002(c)(1) 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 (February 17, 2009, through February 16, 2010), 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. An eligible person under Section 1002(d) of the Act 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. The RO attempted to verify whether the appellant had participated in qualifying service for the benefit sought. The NPRC reported in September 2009, August 2010, January 2013, and February 2013, 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. The appellant has submitted multiple documents purporting to show that he served with the USAFFE, and as a recognized guerillas, to include; Special Order No. 55 1-L Proof of Service from the Hunters Division Forces dated December 1944, certificate of service from the United states Army Forces of the Western Pacific Recovered Personnel Division of the Philippine Army Section APO 707 dated August 1945, Memorandum from the Hunter's ROTC Guerrilla dated March 1946, Special Order No. 131 Release from Active Duty from the Commonwealth of the Philippines dated May 1946, Official Certification of Service from National Defense Forces Headquarters dated December 1947, Army Ground Forces 3 reply letter to request for certifications of guerrilla status from the National Defense Headquarters dated December 1947, Application for Old Age Pension dated January 1992, Certification as a Veteran of World war II from the Philippine Veterans Administration dated October 1972, Application for Recognition to Back Pay from the Bureau of Treasury received in March 2009, Certification as a World War II Veteran and Approval of Educational Benefit Claim from the Philippine Veterans Administration dated October 1972, affidavits from M.B.S. and P.B.S. dated December 1971, affidavit and statements from the appellant asserting guerilla service as a World War II Veteran received in March 2009, newspaper article from the Philippine Star magazine titled Guerrilla Operations After Manila dated March 1995, article from the Philippine Daily Inquirer dated February 2010, and photocopies of identification cards. The documents from the Philippine government fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The documents are not official documents from the United States service department, but rather are documents generated by the Philippine government. As such, those documents may not be accepted by the RO or 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. As noted, 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. See NPRC verification dated in September 2009, July 2010, November 2012, and January 2013. The Board acknowledges his arguments to the contrary claiming that he had the requisite service. 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). The proper course for the appellant, if he 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 from the United States, administered by VA. The submitted oaths are also not sufficient for benefits from the United States, 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 an eligible person for the purpose of 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. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs