Citation Nr: 1321726	
Decision Date: 07/08/13    Archive Date: 07/18/13

DOCKET NO.  11-29 110	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.


WITNESSES AT HEARING ON APPEAL

Appellant and Daughter


ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel



INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO). 

In January 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A copy of the transcript of that hearing is of record.

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 United States Armed Forces.  


CONCLUSION OF LAW

The service requirements for eligibility to a one-time payment from the FVEC fund are not met.  38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009); 38 C.F.R. § 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board finds that because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002).  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 (2004), 69 Fed. Reg. 59989 (2004).  

Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons.  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009).

For eligible persons who accept a payment from the FVEC Fund, the payment shall constitute a complete release of any claim against the United States by reason of that service.  However, nothing in the act prohibits 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 the Act.  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009).

For payments to eligible persons who served in the United States Armed Forces in the Far East during World War II, VA 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 the Act, submitted a claim to VA for benefits under the act.  The application for the claim shall contain the information and evidence VA requires.  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009).

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 § 14 of the Armed Forces Voluntary Recruitment Act of 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 (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).  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 with the relevant service department, not with VA.  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 the claimed service.  38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).

Initially, the Board notes that the appellant's claim was received by VA on February 28, 2009.  He asserted he was eligible for a one-time payment from the FVEC fund as a result of service in Hq. Co. 110th Regt., 10th Military District, from September 16, 1943, to 1945.  

The RO requested verification of service by the applicable United States service department using the appellant's full name, place of birth, dates of birth, dates of service, and unit designations provided by the appellant in supporting documents.  In addition to the verification information the RO listed on the forms, the RO also supplied copies of relevant records submitted by the appellant.  In August 2010, the National Personnel Records Center (NPRC) responded 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.  Consequently, the RO determined that the appellant did not have the requisite service to establish eligibility for payment from the FVEC Fund and, thus, denied the claim.  The appellant subsequently submitted statements noting an error in the information reported in the August 2011 statement of the case and provided copies of additional documents in support of his claim including affidavits from E.T.B. and N.M.A.  In reports dated in April 2012 and October 2012 the NPRC again, upon the information provided by the appellant, responded that he had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  

During the course of the appeal, the appellant submitted additional documentation contesting the RO's decision and attesting to his service in the recognized guerillas.  He testified in January 2013 that he had served with American officers and had duties in intelligence.  However, none of that submitted documentation and lay evidence qualifies as acceptable proof of service.  38 C.F.R. § 3.203 (2012).  On the contrary, that evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought.  Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the FVEC Fund.

NPRC has duly considered the appellant's application for VA benefits and certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas.  The Board is bound by that certification.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA).

The Board concludes that the appellant did not meet the requisite legal requirements for obtaining a one-time payment from the FVEC Fund.  Therefore, his claim for benefits must be denied.  In reaching this conclusion, the Board remains sympathetic to the appellant and does not question the sincerity of his belief that he is entitled to VA benefits, specifically in the form of payment from the FVEC Fund.  Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law.  38 U.S.C.A. § 7104 (West 2002 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994).



ORDER

The appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund and the claim is denied.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs