Citation Nr: 1320067 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-41 843 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 administrative decision of the VA RO in Manila, the Republic of the Philippines. In February 2013, the Veteran was scheduled to have a hearing at the VA RO before a Veterans Law Judge. However, the Veteran failed to report for that hearing and has not stated a good cause for doing so. In addition, he has not requested that his hearing be rescheduled. Therefore, the Board will proceed as if the Veteran no longer desires a hearing. 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) 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 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 FINDING AND CONCLUSION VA's Duties to Notify and Assist Generally, VA has a duty to assist the appellant in the development of his claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (West 2002 and Supp. 2012); 38 C.F.R. § 3.159 (2012). In this case, however, the Board finds that because the claim at issue is limited to statutory interpretation, the notice provisions do not apply. VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004. The Applicable Law and Regulations On February 17, 2009, the President of the United States signed the American Recovery and Reinvestment Act of 2009. That act authorizes the release of a one-time, lump-sum payment to eligible World War II Philippine Veterans. Those payments are made through VA. American Recovery and Reinvestment Act, Section 1002, Public Law 111-5 (enacted February 17, 2009). Payment for eligible persons will be either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. An eligible person is any person who 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 in 1945 (59 Stat. 538 ); and was discharged or released from service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). 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). 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. 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. Analysis The appellant contends, essentially, that he had service in support of American forces during World War II. Therefore, he maintains that he is entitled to a one-time payment from the FVEC. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that there is no legal basis for the appellant's claim. Accordingly, the appeal will be denied. Documents submitted in support of the appellant's claim, such as those from the General Headquarters, Armed Forces of the Philippines, dated in April 1995 and August 2001, show that from April to October 1945 and in December 1945, the Veteran was assigned to D Company, 1st Battalion, Buenavista Regiment. In December 2001 and March 2012 (VA Form 21-3101 (JF)), the Manila VARO requested that the National Personnel Records Center (NPRC) complete AGUZ Form 632 and furnish all extracts of Form 23 executed prior to and subsequent to June 30, 1946 and all available medical and clinical records. The VARO noted that the appellant was not listed in the Reconstructed Recognized Guerilla Roster maintained at the Manila VARO. In February 2002 and April 2012, the 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. Inasmuch as the service department has failed to document or certify the appellant's service, he is not eligible for the one-time payment from the FVEC Fund. Therefore, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, not the evidence, the appeal should be terminated for lack of legal entitlement or merit). ORDER Legal entitlement to the one-time payment from the FVEC fund is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs