Citation Nr: 1320590 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 11-26 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The appellant claims he had recognized guerilla service in the United States Armed Forces from February 1944 to August 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO), which determined that the appellant does not have basic eligibility for legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. 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). FINDING OF FACT The service department has certified that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces during World War II. CONCLUSION OF LAW The legal criteria for eligibility to a one-time payment from the FVEC Fund have not been met. 38 U.S.C.A. §§ 101, 501(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This is so, because, as discussed below, the facts regarding legal entitlement to one-time payment from the FVEC Fund are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits. The aforementioned notice and development requirements are therefore inapplicable and need not be considered with regard to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also Palor v. Nicholson, 21 Vet. App. 325, 331 (2007)("Therefore, in assessing whether the appellant was prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status, the Court can conclude only that because the appellant is currently ineligible for VA benefits as a matter of law based on the [service department's] refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error"). The appellant asserts that he is entitlement to a one-time payment from the FVEC Fund based on his "volunteer" or guerrilla service with the United States Armed Forces. 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 called into the service of the United States Armed Forces of the Far East by President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that the service of certain Filipino veterans does not entitle them to receive full benefits administered by the Secretary United States Department of Veterans Affairs. 38 U.S.C.A. § 107 (West 2002). On February 17, 2009, the President signed the American Recovery and Reinvestment Act, intended for "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization." See Pub. L. No. 111-5, 123 Stat. 115 (2009). The legislation included a provision for the creation of the FVEC Fund, providing one time payments to "eligible persons" in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (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 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 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 such service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009). The Act further directs the Secretary to "administer the provisions of this section in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and shall apply the definitions in section 101 of such title in the administration of such provisions, except to the extent otherwise provided in this section." Id. The Secretary 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, the Secretary has prescribed regulatory provisions governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. That regulation provides that for the purpose of establishing entitlement to benefits, 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 VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203 (2012). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for ninety days for a line of duty disability. 38 C.F.R. § 3.203(b). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, the VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c) (2012). Findings by the service department verifying an individual's service are binding on VA for purposes of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In March 2010 and March 2013, the National Personnel Records Center (NPRC) certified that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. VA is bound by this certification. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 ("The Federal Circuit's decision in Soria recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive and binding on VA"); Duro, 2 Vet. App. 530, 532 (1992). The Board has carefully considered the documentation submitted by the appellant, however, 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. The 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. In addition, the NPRC has considered the information contained in that documentation and nonetheless, certified that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States the Armed Forces. Again, the Board is bound by this certification. See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008) (noting that "if the United States service department refuses to verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not the VA"). As the service department has certified that the appellant did not have the requisite service to qualify him for payment from the FVEC Fund, there is no legal entitlement, and one-time payment is not warranted. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs