Citation Nr: 1321577 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 11-29 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION 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). The appellant alleges that he served with the United States Armed Forces in the Far East (USAFFE) during World War II. Specifically, that he served with the Philippine Commonwealth Army from August 1941 to May 1946. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Veteran testified at a July 2011 hearing before a Decision Review Officer at the Regional Office in Oakland California. The hearing transcript is associated with the claims file. FINDING OF FACT The service department 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 is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 107 (West 2002 & Supp. 2011); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist 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); 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 inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The VCAA does not apply to the appellant's claim seeking compensation from the Filipino Veterans Equity Compensation Fund. As will be explained below, his claim must be denied as a matter of law because the undisputed facts, when applied to the controlling law and regulations, render the appellant ineligible for the claimed benefit. The Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. The Court has recognized that enactment of the VCAA does not affect matters on appeal from the Board when the questions are limited to statutory interpretation. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (1999); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). In addition, VA's General Counsel has held that there is no duty to notify a claimant where a 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, and no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. See VAOPGCPREC 5-2004. In the instant case, there is no legal entitlement to the benefit claimed (Filipino Veterans Equity compensation benefits) because the appellant did not have recognized qualifying active military service. Because there is no reasonable possibility that further notice or assistance would aid in substantiating this claim, any VCAA notice or assistance deficiencies are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Filipino Veterans Equity Compensation Under the 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 § 1002, Pub. L. No. 111-5 (enacted 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. 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 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. Section 1002(j)(2) also provides that VA will administer its provisions in a manner consistent with VA law except to the extent otherwise provided in the statute. In November 2009, the National Personnel Records Center (NPRC) provided verification by the service department, showing 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 from the United States Armed Forces for purposes of establishing entitlement to VA benefits in accordance with 38 C.F.R. § 3.203(a)(1). While the appellant did submit a heavily redacted DD Form 214 to the record, the Board finds that this DD Form 214 was for someone other than the appellant. In that regard, while the full name of the individual was redacted, the Form DD 214 indicated service in the United States Navy with entry in Baltimore, Maryland, and identified a birth date in September 1983. For these reasons, the Board finds that the appellant did not submit a DD Form 214 verifying service in the United States Armed Forces. Instead the appellant submitted the following documents: (1) Certificate of Honorable Discharge for Commonwealth Army of the Philippines, (2) Affidavit from the Philippine Army Personnel, (3) Service Information from the Assistant Adjudicant General, (4) Certification of Military Service from the Armed Forces of the Philippines, (5) Special Order from the Commonwealth of the Philippines, Army Headquarters, (6) Supporting Papers Checklist, Philippine Army Processing Unit, (7) lay statements from R.G., M.B., and F.S. identifying service with the appellant under the "C" Co. 1st Battalion, 42nd Infantry, 41st Division, from August 1941 to April 1942, (8) Service Decoration Certificate from the Office of the President, Republic of the Philippines, (9) Application for Old Age Pension from the Philippine Veterans Affairs, (10) Pensioner Information from the Philippine Veterans Affairs Office, (11) Department of the Philippines, Department of Finance back pay records, (12) Stock Certificate from the Philippines Veterans Bank, (13) the appellant's own statements and hearing testimony attesting to his service and the probative value of submitted documentation in support of his claim; (14) copies of membership cards for the Veterans of Foreign Wars and the AFWESPAC, (15) a photocopy of the appellant's dog tags, (16) a petition for naturalization from the United States Department of Justice, and (17) photocopies of a United States Passport and a California Senior Citizen Identification Card issued by the DMV. While the certification from the Commonwealth Army of the Philippines, an Affidavit for Philippine Army Personnel, Certification of Military Service from the Armed Forces of the Philippines, and lay statements from R.G., M.B., and F.S. indicate that the appellant served under the "C" Co. 1st Battalion, 42nd Infantry, 41st Division, from August 1941 to April 1942; and while a Special Order from the Commonwealth of the Philippines, Army Headquarters indicates service with the "A" Co. 3rd MP Battalion (PA) APO 75 prior to May 1946, these documents 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, these documents 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 Board finds that other evidence listed above does not tend to verify the appellant's claimed service with the USAFFE during World War II. In July 2010 and March 2012, after reviewing the additional evidence submitted by the appellant, the NPRC provided additional verification by the service department, showing that no change was warranted in the prior negative service certification and responses. July 2010 and March 2012 responses from the NPRC continue to show 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. See Sarmiento v. Brown, 7 Vet. App. 80 (1994) (recertification with evidence of erroneous spelling of name); Capellan v. Peake, 539 F.3d 1373(Fed. Cir. 2008) (recertification when there is newly received relevant evidence since the negative certification). While the appellant asserts that his records were burned during a fire that occurred at the NPRC archives in St. Louis, Missouri, the NPRC informs VA of records that are determined to be fire-related, and the appellant's records are not shown to be fire-related in this case. The NPRC provides verification of service through the appropriate United States service department. Thus, any available records for the appellant would be held by the service department, the United States Army Personnel Records Center, and not by the NPRC at the time of the July 1973 fire. The 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 United States Armed Forces. The appellant asserts that VA relied solely on records provided by the NPRC and not on lay evidence and documents submitted by the appellant. The Board finds, however, that verification from the NPRC and the service department 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. Based upon the record in this case, 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 may not, therefore, be considered a Veteran for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. Since the law is dispositive in this matter, the claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (CONTINUED ON NEXT PAGE) ORDER Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs