Citation Nr: 1319915 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 11-27 691 ) 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 P. Childers, Counsel INTRODUCTION 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). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. FINDING OF FACT The appellant has 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 a one-time payment from the Filipino Veterans Equity Compensation fund are not met. 38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.9, 3.40, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. However, the United States Court of Appeals for Veterans Claims has held that when the law as mandated by statute, and not the evidence, is dispositive of the claim, the above provisions 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). Additionally, VA's General Counsel has held that there is no duty to notify a claimant where the claim cannot be substantiated, i.e., there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. VA's General Counsel has also held that there is no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim. VAOPGCPREC 5-2004. Here, there is no legal entitlement to the benefits claimed; accordingly, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim. 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) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). VA requested and obtained service department verification of the appellant's service. Because the service department's certification is binding, the Board's review is limited to interpreting the pertinent law and regulations. Under the circumstances of this case, the Board finds that no additional VCAA notice or assistance is necessary. Evidence and Analysis The appellant contends that she is entitled to VA benefits, specifically a one-time payment from the Filipino Veterans Equity Compensation Fund, due to her service during World War II. The particular benefit claimed originated on February 17, 2009 with the American Recovery and Reinvestment Act, to promote job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization. Pub. L. No. 111-5, 123 Stat. 115 (2009). That legislation established the Filipino Veterans Equity Compensation Fund, which provides one-time payments to eligible persons. Pub. L. No. 111-5, § 1002, 123 Stat. 115 (2009). An eligible person is defined as any person who served 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 dated July 26, 1941. That includes any person who served in military units such as the 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; and any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). Additionally, the person must have been discharged or released from service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115 (2009). The Act further directs VA to administer the provisions in a manner consistent with applicable provisions of Title 38 of the United States Code, and other provisions of law, and to apply the definitions in 38 U.S.C.A. § 101 in the administration of the provisions, except to the extent otherwise provided. Pub. L. No. 111-5, § 1002, 123 Stat. 115 (2009). Specifically, VA is authorized by statute to prescribe regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits' under the laws administered by VA. 38 U.S.C.A. § 501(a)(1) (West 2002). Pursuant to that authority, regulatory guidelines have been developed governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. The guidelines provide that, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a Service Separation Form, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains needed information as to length, time, and character of service; and (3) in the opinion of VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). Findings by the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997). Moreover, where the United States service department does not certify the claimant's alleged service in the Philippine Army, VA cannot consider his claim for veterans' benefits based on that service. Soria v. Brown, 118 Fed. 3d. 747 (Fed. Cir. 1997). In April 2009 the appellant filed her claim for a onetime payment from the Filipino Veterans Equity Compensation Fund. She reported that she had served, as a recognized Guerilla, with the Eastern Battalion, 86th Infantry, Bohol Area Command from March 5, 1943 to May 31, 1945. She could not recall her service number. In November 2010 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 United States Armed Forces. In a decision in December 2010 the RO denied the claim. In January 2011 the appellant filed a notice of disagreement and submitted the following documents: * a photocopy of a senior citizens identification card; * a Confirmation of Military Service from the Department of National Defense dated September 7, 2000, certifying that the appellant had rendered honorable military service during World War II, and was being conferred full military veterans status; * a document from the Department of National Defense, Military Service Board, dated January 24, 2001, advising that the appellant had confirmed military veteran; * a copy of her birth certificate; * a copy of her marriage license; * her own affidavit, dated in July 1991, in which she stated that she was a bonafide member of the Loay Women's Auxiliary Service (WAS); that she had been inducted into such service on March 5, 1943, by then Lt. [redacted] ; that she rendered service as a WAS member during the second World War; that she helped in administering medical treatment to wounded soldiers coming from the firing line and helped in entertaining military officials; that her comrades in arms included [redacted], [redacted], and [redacted]; and that, chronologically, her activities since March 5, 1943, to May 31, 1945, consisted of helping in the procurement of foodstuffs, gathering used clothing for the soldiers; and sending them to the Loay Detachment; * a July 1991 affidavit from [redacted], stating that he was a USAFFE Guerilla of the second World War; that he knew that the appellant was inducted into the service in the Loay Women's Auxiliary Service on March 5, 1943, and separated on May 31, 1945, with the rank of "private"; that the appellant's duties as a member of the Loay WAS had included procurement of foods and securing medicines, clothing, sterilized water for wounded soldiers, and asking for financial help from peace-loving people of Loay and neighboring towns; and that the appellant was not paid for her services nor recognized because recognition at that time was very limited; * a July 1991 affidavit from [redacted], stating that she was a member of the Women's Auxiliary Service with the rank of Captain; that she personally knew the appellant; that the appellant was a bonafide member of the Loay WAS organization; that the appellant's duties were procurement of foodstuffs for the guerillas and asking for financial support from the peace-loving people of Loay and neighboring towns; and that the appellant served in the WAS movement from March 5, 1943, until May 31, 1945; * a July 1991 affidavit from [redacted], stating that she had been inducted into the USAFFE at Tagbilaran, Bohol by Major [redacted] and assigned in the Hq and Hq Services Company, 83rd Infantry. Regiment; that she personally knew the appellant; that the appellant was an active member of the Loay Women's Auxiliary Service (WAS) assigned in the Eastern Battalion; and that the appellant had solicited voluntary contributions, such as foodstuffs and other supplies, from the barrio people for the underground movement in Bohol; and * a July 1991 affidavit from [redacted], stating that she had been a member of the staff of the Northern Battalion of the Women's Auxiliary Service, 86th Infantry, Bohol Area Command; that the WAS organization was very active in the procurement of foodstuffs and medicines for the furtherance of the resistance movement; and that she officially and personally knew the appellant, who was with the Eastern Battalion, Loay, Bohol; In February 2013 this evidence was submitted to the NPRC for certification. In March 2013, the NPRC again 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. This finding is binding on VA for purposes of establishing service in the United States Armed Forces. Spencer v. West, 13 Vet. App. 376 (2000). Although the appellant seeks to establish eligibility for benefits as a member of the Philippine Commonwealth Army in the service of the United States Armed Forces, she has not submitted a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, or any other evidence issued by the service department; and the NPRC has repeatedly certified that she had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. The Board is bound by those certifications. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the United States service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA). The Board acknowledges the appellant's contentions. Nonetheless, because the appellant does not have the requisite service to qualify for a one-time payment from the Filipino Veterans Equity Compensation Fund, her appeal must be denied as a matter of law. 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