Citation Nr: 1320051 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-43 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to nonservice-connected pension benefits. 2. Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Appellant contends that he had service with the U.S. Armed Forces, specifically recognized guerilla service, during World War II. The issue of entitlement to nonservice-connected pension benefits comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 decision by the Department of Veterans Affairs (VA) Regional Office in Manila, Republic of the Philippines. The issue of entitlement the one-time payment from the Filipino Veterans Equity Compensation Fund comes before the Board on appeal from a May 2010 decision by the Regional Office in Manila, Republic of the Philippines. During the pendency of this appeal, the Veteran's claims file was transferred from the Regional Office in Waco, Texas, to the Regional Office in Manila, Republic of the Philippines (RO). In March 2007, the Appellant submitted a claim of entitlement to an unstated VA benefit or benefits. In an April 2007 letter, VA notified the Appellant that the March 2007 claim was incomplete and, thus, additional information was necessary in order to address his entitlement to the claimed benefit or benefits. Specifically, VA notified the Appellant that he needed to submit sufficient documentation establishing his dates of service, and further notified him that he needed to complete various missing portions of the March 2007 application, including identification of the disability or disabilities for which he was seeking compensation. The Appellant then submitted the missing portions of the March 2007 application, which indicated that he was seeking entitlement to service connection for a lumbar spine disability and a sinus disability. The Appellant also submitted a variety of documents purporting to establish his service dates. In a May 2007 letter, VA notified the Appellant that the documentation submitted was insufficient to establish his service dates and, thus, additional evidence was required. In July 2007, the Appellant submitted duplicates of the previously submitted documents in addition to other documentation purporting to establish his dates of service. The Appellant also submitted a contemporaneous statement wherein he asserted that he served as a Guerrilla from October 15, 1944 to March 15, 1945, with Squadron "C," San Felipe Sector, Zambales Military District. VA provided no response to the Appellant's July 2007 submission. As such, the Board finds that claims of entitlement to service connection for a lumbar spine disability and a sinus disability are pending before VA. See 38 C.F.R. § 3.158 (2012). As these claims have not been developed or adjudicated, the Board does not have jurisdiction to address them herein. Consequently, the Board refers these claims to the RO for the appropriate action. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The National Personnel Records Center (NPRC) has determined that the Appellant had no verified service as a member of the Philippine Commonwealth Army, including the Recognized Guerrillas, in the service of the United States Armed Forces. 2. The record was otherwise negative for evidence demonstrating official verification of the Appellant's service as a member of the Philippine Commonwealth Army, including the Recognized Guerrillas, in the service of the United States Armed Forces. CONCLUSIONS OF LAW 1. The criteria for basic eligibility for VA nonservice-connected pension benefits have not been met. 38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. § 3.3 (2012). 2. 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. § 5101 (a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act, Section 1002, Pub. L. No. 111-5 (Enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the law regarding VA's duties to notify and assist have no effect on an appeal where, as here, the law, and not the underlying facts or development of the facts, is dispositive with respect to both of the above-captioned claims. 38 U.S.C.A. § 5103A (West 2002 & 2012); Manning v. Principi, 16 Vet. App. 534 (2002). The salient issue with respect to both of the above-captioned claims is whether the Appellant had any verified service as a member of the Philippine Commonwealth Army, including the Recognized Guerrillas, in the service of the United States Armed Forces or otherwise. In support of these claims, the Appellant submitted a variety of documents purporting to establish his dates of service. Specifically, the Appellant submitted: (1) an August 19, 2000 Certificate of Naturalization as a Citizen of the United States of America; (2) an undated Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office application form for bank remittance for active pensioner; (3) an August 7, 2001 letter from a bank notifying the Appellant that his application for Old Age Pension was recommended for approval; (4) an August 31, 1966 favorable response from the Republic of the Philippines, Office of the President, Philippine Veterans Administration to the Appellant's request for certification to the Civil Service Commission as a "Deserving Guerrilla, veteran of World War II"; (5) a November 12, 2002 letter from the Philippine Veterans Affairs Office demonstrating that the Appellant retired from government service in 1985, and that his Old Age Pension (Veteran Category) had been approved; (6) an undated identification card showing his membership in the Veterans Federation of the Philippines; (7) a photocopy of his marriage contract, showing that he married on November 23, 1958; (8) an April 26, 2001 print-out from the Republic of the Philippines, Office of the Civil Registrar confirming the Appellant's marriage status; and (9) an October 6, 2009 Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office certification of the Appellant as a veteran of the Philippine Revolution/World War II with an approved Old Age Pension, showing that his category of veteran was "Deserving Guerrilla." Additionally, in a March 2007 statement, the Appellant asserted that he was a Philippine Guerilla under the command of United States Forces during World War II, serving as a Rifleman. Further, in an April 2007 claim of entitlement to health and dental services, the Appellant indicated that his dates of service were from October 15, 1944 to March 15, 1945; dates that he reiterated in a July 2007 statement, his April 2009 claim of entitlement to nonservice-connected pension, and his October 2009 claim of entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. In the July 2007 statement, the Veteran also asserted that he was inducted by Marcio Agloro, Commanding Officer of "B" Company, San Felipe Sector, Squadron "C," Zambales Military District. In April 2009, the RO submitted a request to the National Personnel Records Center (NPRC) for verification of the Appellant's claimed service. In a June 2009 response, NPRC indicated that the Appellant "has no service as a member of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Forces." The RO did not submit any additional requests to NPRC for verification of the Appellant's claimed service. I. Nonservice-Connected Pension Generally, in order to establish basic eligibility for nonservice-connected pension benefits, it must be shown that the appellant served on active military duty during a period of war for 90 days or more. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3). Along with other periods not here applicable, the laws and regulations recognize December 7, 1941 through December 31, 1946 (World War II) as a period of war. 38 U.S.C.A. § 101 (9), (11), (29) (West 2002); 38 C.F.R. § 3.2 (2012). The evidence of record does not include any official documentation showing that the Appellant had any active military duty service during a period of war as defined by law or regulation. 38 C.F.R. § 3.2. As discussed above, according the June 2009 response received from NPRC, the Appellant has no verified service, during a period of war or otherwise. Further, the evidence of record did not include official documentation, such as a Form DD 214, demonstrating that the Appellant had qualifying service during a period of war. As such, the Board finds that the Appellant had no active service during a period of war and, thus, the Appellant lacks qualifying military service during a period of war. Consequently, the Board finds that basic eligibility for nonservice-connected pension has not been established. 38 C.F.R. § 3.3(a)(2)(iii). Accordingly, the Appellant's claim for nonservice-connected pension benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). II. One-Time Payment from the Filipino Veterans Equity Compensation Fund Historically, 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 incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt. Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that many of those who served in the Philippine Islands during World War II did not have qualifying active service for the purpose of receiving VA benefits. 38 U.S.C.A. § 107 (West 2002). The particular benefit claimed originated on February 17, 2009 with the American Recovery and Reinvestment Act (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). Also, 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 shall 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. 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). 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. 3rd 747 (Fed. Cir. 1997). In October 2009, the RO received the Appellant's claim for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. In the application, the Appellant contended that he served from October 15, 1944 to March 15, 1945. In April 2009, pursuant to the Appellant's claim of entitlement to nonservice-connected pension benefits, the RO submitted a request to NPRC for certification or verification of the Appellant's claimed military service in the Armed Forces of the United States. In a June 2009 response, NPRC indicated that the Appellant "has no service as a member of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Forces." Accordingly, the RO denied the Appellant's claim. The Appellant then perfected an appeal to the Board. As discussed above, the Appellant submitted a variety of documents in support of his claim. At the time of the RO's April 2009 request to NPRC, the evidence of record included documents #1 through #8, as enumerated above, which were reviewed by NPRC prior to issuing the June 2009 negative response. Following the June 2009 response from NPRC, the Appellant submitted duplicates of several documents that were considered by NPRC. In addition to those documents, the Appellant submitted one new document, dated on October 6, 2009 (enumerated as #9 above). This document was a letter from the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office certifying the Appellant as a veteran of the Philippine Revolution/World War II with an approved Old Age Pension, showing that his category of veteran was "Deserving Guerrilla." This letter did not show the Appellant's dates of service, rank, or unit assignment. Further, it was not generated by a United States service department or NPRC. As such, the Board finds that the October 6, 2009 letter does not serve to verify the Appellant's claimed service as a member of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Forces during World War II. Although it was not of record at the time NPRC addressed the RO's June 2009 request to verify the Appellant's service, based on the above, the Board finds that the submission of an additional request to verify the Appellant's claimed service to NPRC by the RO was not warranted. After the Appellant's claim was denied in May 2010, he perfected an appeal. Consequent to that appeal, the RO issued a statement of the case in April 2011, confirming and continuing the denial of the Appellant's claim. After the April 2011 statement of the case was issued, the Appellant submitted duplicates of a variety of documents already of record and statements dated in June 2011 and in February 2013. Although his statements have not been considered by the RO in adjudication of the case, the Board notes that the Appellant is not prejudiced in this regard, as the statements do not contain any new information, and are essentially duplicative of argument previously of record and considered by the RO. As such, the Board finds that a waiver of RO review was not required. 38 C.F.R. § 20.1304 (2012). In sum, NPRC has duly considered the Appellant's application for VA benefits, including the pertinent documentation submitted by the Appellant, and has certified that he 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). For the foregoing reasons, the Board finds that the Appellant does not have the requisite service to qualify for a one-time payment from the Filipino Veterans Equity Compensation Fund. Therefore, his claim for benefits must be denied. The Board does not doubt the sincerity of the Appellant's belief that his service qualifies as recognized guerrilla service with the American Forces during World War II. However, a decision in this regard is not within the Board's jurisdiction, and the matter must be resolved with the service department and not VA. The Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994). This case is decided based on its application of the law to the pertinent facts. Owings v. Brown, 8 Vet. App. 17 (1995); Kelly v. Derwinski, 3 Vet. App. 171 (1992) (holding that the law must be interpreted as it exists, and cannot extend benefits out of sympathy for a particular claimant). ORDER Basic eligibility for VA nonservice-connected pension benefits has not been established and, therefore, entitlement to nonservice-connected pension is denied. Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs