Citation Nr: 1320592 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 12-07 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, that determined that the appellant did not have qualifying service to be eligible for the one-time payment from the Filipino Veterans Equity Compensation Fund. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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) (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 The law, and not the facts, is dispositive of this appeal. Thus, the Board finds that VA's duties to notify and assist are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine Veterans to be paid from the "Filipino Veterans Equity Compensation Fund." American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Section 1002, which addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East During World War II, 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. See Section 1002(c)(1). 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. In July 2010, 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 has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge issued by the United States Army in accordance with 38 C.F.R. § 3.203(a)(1). The Board acknowledges that the appellant has submitted several documents in support of her claim, to include the following: affidavit for Philippine Army Personnel; certification from Office of Adjutant General, Armed Forces of the Philippines; certification and letter from Philippine Veterans Affairs Office; and application for Old Age Pension from Philippine Veterans Affairs Office. These documents are not acceptable proof of the requisite service, however, because they are not official documents of the appropriate United States service department. VA is prohibited from finding on any basis other than a service department document which VA believes to be authentic and accurate or service department verification that a particular individual served in the United States Armed Forces. Furthermore, any such service department finding is binding on VA for purposes of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The appellant has also submitted a copy of her United States passport. While the Board acknowledges that the appellant is a naturalized citizen of the United States, US Immigration and Naturalization Service procedures and findings are not binding on VA. See Soria v. Brown, 118 F. 3d 747 (Fed. Cir. 1997). This department is bound to follow the certifications by the service departments with jurisdiction over United States military records. Lastly, in written statements, the appellant has questioned whether documents that would show that she had valid service were destroyed in a July 12, 1973, fire at the NPRC. The Board notes that, it is the NPRC, as the representative of the service department, that indicated that its review of its records showed a lack of valid service, and it did not indicate that the records that would have indicated valid service were of the type that was destroyed in the fire. As the above regulations require the Board to rely on verification of service by the service department, the Board will also rely on the NPRC's implicit finding that there were no records relevant to this case that were likely destroyed in the 1973 fire. In this case, the finding of the NPRC 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 is binding on VA. Thus, the Board finds that the appellant has no qualifying service in the United States Armed Forces and is not a "Veteran" for the purpose of establishing eligibility for the Filipino Veterans Equity Compensation Fund. Accordingly, the appeal must be denied. ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs