Citation Nr: 1320002	
Decision Date: 06/20/13    Archive Date: 07/02/13

DOCKET NO.  10-39 490	)	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.  


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

S. Keyvan, Associate Counsel





INTRODUCTION

The appellant contends that he served with a recognized guerrilla unit from December 1941 to November 1945, to include service with the Philippine Commonwealth Army from August 1945 to October 1945.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  In that decision, the RO determined that the appellant had no legal entitlement to a one-time payment from the FVEC fund because he had no qualifying service.  

In June 2012, the appellant testified at a videoconference hearing from the Manila RO before the undersigned, who conducted the hearing sitting in Washington, DC.  The hearing was attended by a translator who assisted the appellant and his spouse communicate with the undersigned.  

In August 2012, the Board remanded the appellant's claim and specifically directed the agency of original jurisdiction (AOJ) to make an additional request for verification of appellant's military service from the National Personnel Records Center (NPRC).  The Board instructed the AOJ to include both spellings of the appellant's last name, his claimed dates of service, and each unit he reportedly served with in the request.  Pursuant to this remand, the AOJ submitted the additional information to the NPRC in conjunction with another request for verification of the appellant's service.  Based on the additional information, the NPRC confirmed that the appellant had no service as a member of the Philippine Commonwealth Army.  As such, the Board finds that the AOJ completed the development requested in the August 2012 Board Remand and complied with the remand instructions.  See Stegall v. West, 11 Vet. App, 268 (1998).  

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 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 service requirements for eligibility to a one-time payment from the FVEC Fund have not been met.  38 U.S.C.A. § 5101(a) (West 2002 & West Supp. 2012); 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

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012), and implemented at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  As the law is dispositive in the instant claim, the VCAA is not applicable.  



II.  Analysis

The appellant seeks compensation from the FVEC Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009) (to be codified in Title 38 of the United States Code: Veterans' Benefits).  Payments for eligible persons will be either in the amount of $9,000 for non-United States citizens or $15,000 for United States citizens.  The Secretary of VA is to administer the fund consistent with applicable provisions of the Title 38 of the United States Code.  

For eligible persons who accept a payment from the FVEC Fund, such 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 this Act.  

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.  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).  

Under 38 C.F.R. § 3.203(a), the VA may accept evidence of service submitted by a claimant, such as a DD Form 214, 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 the Department of Veterans Affairs the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a).

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); 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.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service.  38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  

The appellant contends that he enlisted with the United States Army Forces of the Far East (USAFFE) in December 1941.  See May 2005 and December 2005 Statements of the appellant.  In February 2009, the appellant submitted an application for a one-time payment from the FVEC Fund.  He reported that he served with the Philippine Commonwealth Army, including the recognized guerillas, and that he had been assigned to the "E" Company 2nd Battalion 64th Infantry Regiment.  See February 2009 claim and December 23, 2009 Statement of the appellant.  

Pursuant to a previous claim for service-connected benefits, VA attempted to verify the appellant's service with the NPRC multiple times, and received negative responses in April 2007 and May 2007.  In a response letter dated on April 4, 2007, the NPRC reported that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.  A subsequent request was initiated in April 2007 specifically directing the NPRC to re-verify the appellant's service using a different spelling of his last name.  A search utilizing both variations of the appellant's last name returned negative results, and in the May 2007 response, the NPRC indicated that the evidence submitted was insufficient to warrant a change in the prior certification letter dated April 4, 2007.  In the May 2009 decision, the RO denied the appellant's claim for entitlement to the one-time payment from the FVEC Fund.  

In support of his claim, the appellant has submitted copies of documents related to his service, including but not limited to, numerous self-affidavits certifying that he was a member of the Reserved Forces of the Philippine Commonwealth Army, to include the USAFFE; memorandums issued by the Armed Forces of the Philippines Office of the Adjutant General and dated in October 2000 and June 2010, certifying that the appellant enlisted with the "E" Co. 2nd Bn 64th Infantry unit in December 1941, and was discharged from service in November 1945; a copy of the appellant's Identification card; a Certification of Discharge dated on November 30, 1945; and a copy of the appellant's Enlistment Record and Final Endorsement report.  

A collective review of the information submitted indicates that the appellant may have been assigned to multiple military units or organizations during his purported period of service.  Utilizing this additional information, the AOJ sent another request to the NPRC with the accompanying evidence, and asked that the service department verify whether there had been qualifying service.  The Board notes that in this particular request for verification, the AOJ listed four possible units of assignment, to include "Hq 3rd Bn 51st Inf PA APO 705", "I Co. 3rd Bn 51st Inf PA", "E Co. 2nd Bn 64th Inf", and "51st Inf 3rd Bn."  In October 2011, the NPRC once again responded that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States.  Unfortunately, this particular search was conducted under only one version of the appellant's last name.  

During the June 2012 hearing, the appellant testified that there were two different spellings of his last name, and other than these two variations, he had never used or been identified under any other aliases.  See Hearing Transcript (T.) pp. 4-5.  

Pursuant to the August 2012 remand, the AOJ sent another request to the NPRC in February 2012 including both variations of the appellant's last name.  This request also contained the appellant's multiple units of assignment as well as his dates of service during his claimed period of service.  The AOJ asked the service department to verify whether the appellant had qualifying service based on all the information provided, to include the alternative variations of his last name.  Using this information, the NPRC confirmed again in March 2013, 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.  Specifically, the response indicated that no change was warranted in the prior negative service certification.  

The Board has carefully considered the documentation submitted by the appellant, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service.  The documents submitted by the appellant were not issued by the service department, nor do they contain the necessary information to establish entitlement to the benefit sought.  As such, those documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA, including the one-time payment from the FVEC Fund.  

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 entitlement to the one-time payment from the FVEC Fund.  This department is bound to follow the certifications by the service departments with jurisdiction over United States military records.  

More importantly, the NPRC has certified at least four times (April 2007, May 2007, October 2011, and March 2013) that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.  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).  

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.  Veteran status is a prerequisite to entitlement to payment from the FVEC fund.  As such, entitlement to a one-time payment from the FVEC Fund is denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  


ORDER

Entitlement to a one-time payment from the FVEC Fund is denied.  




____________________________________________
THOMAS H. O'SHAY
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs