Citation Nr: 1320435 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 12-07 245 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The record indicates that the appellant had a confirmed period of duty with the Philippine Army from August 1943 to May 1945, but she has no qualifying service with the United States Armed Forces. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a February 2010 decision by the above Department of Veterans Affairs (VA) Regional Office (RO), in Manila, the Republic of the Philippines, which determined that the appellant did not have qualifying service to be eligible for the 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). FINDING 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 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. §§ 501(a), 5107 (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-02 (Feb. 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA. The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VA's duties to assist and notify have been considered in this case. However, as it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist are not applicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). VA's duties to notify and assist do not affect matters on appeal from the Board when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. In this case, the law is dispositive, and basic legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund eligibility for nonservice-connected pension benefits is precluded based upon the appellant's lack of qualified service; therefore, legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). II. Factual background. In a statement in support of claim (VA Form 21-4138), received in February 2010, the appellant requested a one-time payment from the Filipino Veterans Equity Compensation Fund as an honorably discharged Filipino veteran of World War II who served in the service of the Armed Forces of the United States. He reported serving with the 54th Infantry Regiment Company, 5th Military District Intelligence and Mercinaries Company, 158th Regiment Combat Team from December 1941 to May 1945. Submitted in support of his claim was a joint affidavit from R. G. and A. G., dated in January 1991, indicating that they are both World War II Veterans and were members of the 54th Infantry Regiment. They attest that they know the appellant and he was attached to the Intelligence unit of the 67th Infantry which was later renamed the 54th Infantry Lapuz. They noted that the appellant was engaged in intelligence activities and underground resistance against the Japanese. They reported that only part of their unit was activated and merged with other Guerrilla organization which was attached to the 158th Regimental Combat team of the U. S. Army; by reason of this partial activation and recognition of the 54th Infantry Regiment, Lapuz Unit, the appellant was considered honorably discharged. The appellant also submitted an affidavit from A. G. G., dated in January 1991, indicating that he is a USAFFE Veteran and he knew the appellant to be a member of the 54th Infantry Regiment, 5th MD, Lapuz Unit from June 1942 to April 1945. A. G. G. maintained that the appellant rendered continuous and commendable service to the 5th MD in Intelligence and Infantry operations during World War II. He stated that he is able to attest to the above facts and does not hesitate to recommend the appellant for the benefits as are granted by law to deserving Guerilla Veterans. Of record are two additional affidavits dated in January 1991, one from D. B. and one from D. H. D. B. reported that the Veteran rendered continuous and meritorious service to the 54th Infantry Regiment, 5th Military District. D. B. stated that since only two companies of their Regiment was recognized and the appellant was not included in the Recognized Guerrilla roster, he voluntarily separated from the service in 1945 when he was stricken with malaria. Also submitted in support of the claim was an application for Old Age Pension to the Philippine Veterans Affairs Office (PVAO) in December 1990. In that application, the appellant reported that he served as a Guerilla during World War II and was discharged in May 1945. He also submitted a copy of an application for Educational Benefits, dated in November 1991, wherein he described himself as a deserving guerilla. In September 2010, the National Personnel Records Center (NPRC) reported 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. On January 6, 2011, NPRC again reported 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 his substantive appeal (VA Form 9), received in March 2012, the appellant indicated that he was attached to the 158th Regimental Combat Team, 6th Army of the United States machine gun section. The appellant related that he voluntarily applied for an honorable discharge in May 1945 due to illness from malaria. Received in April 2013 was a response from NPRC indicating that no change was warranted in its prior negative determination regarding the appellant's lack of qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. III. Legal Analysis. Under the recently enacted American Recovery and Reinvestment Act, a new one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund." American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200 -02 (Feb. 17, 2009). 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. For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service ...." However, nothing in this act "prohibit[s] 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 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II. Section 1002 (c)(1) provides 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, 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. 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 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. As noted above, in September 2010 and January 2011, the NPRC reported 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. The appellant did not submit a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1). The certificate of service from the PVAO shows his status as a Filipino veteran. Moreover, his statements regarding his service fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department. As such, the evidence submitted may not be accepted by 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. The NPRC has certified on several occasions 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 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, who 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 administered by VA. This department is bound to follow the certifications by the service departments with jurisdiction over United States military records. As the service department has certified that the appellant did not have the requisite service to qualify him for payment from the FVECF, the appeal must be denied. Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, the appeal is denied. ORDER Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs