Citation Nr: 1322011 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 11-17 898 ) 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 Fund. ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines, which denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund. . The appellant requested a hearing before the Board in conjunction with her appeal. However, she later contacted the Board and asked that her hearing request be withdrawn and for her appeal be forwarded to the Board. Accordingly, appellate adjudication may proceed. 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). FINDINGS 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 United States Armed Forces during World War II. CONCLUSION OF LAW The appellant does not have the requisite service to establish basic entitlement to payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 5107 (West 2002); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant, in written statements to the Board, contends that she had recognized guerrilla service in the Philippine Commonwealth Army, from November 1943 to May 1945. She asserts that she is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. 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 incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that the majority of those that served in the above units did not have qualifying active service for the purpose of receiving VA benefits. 38 U.S.C.A. § 107 (West 2002). The particular benefit requested by the appellant was established pursuant to the American Recovery and Reinvestment Act, which originated on February 17, 2009, to promote job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization. Pub. L. No. 111-5, 123 Stat. 115 (2009). That legislation established the Filipino Veterans Equity Compensation Fund, which provides one-time payments to eligible persons. Pub. L. No. 111-5, § 1002, 123 Stat. 115 (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 dated July 26, 1941. That includes any person who served in military units such as the 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; and any person 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 VA to administer the provisions of this section in a manner consistent with applicable provisions of Title 38 of the United States Code, and other provisions of law, and shall apply the definitions in 38 U.S.C.A. § 101 in the administration of the provisions, except to the extent otherwise provided. Pub. L. No. 111-5, 123 Stat. 115 (2009). Specifically, VA 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, regulatory guidelines have been developed governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. The guidelines provide that, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a Service Separation Form, 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 VA, the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a) (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 90 days for a line of duty disability. 38 C.F.R. § 3.203(b) (2012). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c) (2012). Findings by the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet.App. 530 (1992); Dacoron v. Brown, 4 Vet.App. 115 (1993); Venturella v. Gober, 10 Vet.App. 340 (1997). Moreover, where the United States service department does not certify the claimant's alleged service in the Philippine Army, VA cannot consider a claim for Veterans' benefits based on that service. Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997). In support of her claim, the appellant submitted documents purporting to show that she has the requisite service to establish basic eligibility to receive the one-time payment from the Filipino Veterans Equity Compensation Fund. The appellant maintains that the documents she submitted establish that she served as a recognized guerilla with Markings FAIT Tayabas Regt 2nd Army Troops from November 3, 1943 to May 30, 1945. The documents include evidence that the Veteran is in receipt of monthly benefits from the Philippine Veterans Affairs Office, with a photocopy of a Philippine Veterans Bank Deposit Certification; affidavits from her commanding officer and comrades that certify her service during World War II; a World War II Veteran's ID from the Philippine Veterans Affairs Office; and a letter from the Philippine Women's University where her daughter studied, using the appellant's Philippine Veteran's Educational Benefit. None of the aforementioned documents is a United States service department document establishing qualifying service. Upon receipt of the above documents, the RO contacted the service department on two separate occasions to request verification of the appellant's alleged service. In the requests, the RO included the information the appellant provided in support of the claim, including her date of birth, spelling of her name, and alleged dates of service. An initial response of December 2009 from the National Personnel Records Center (NPRC) indicated that the appellant did not have any qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States. Consequently, the RO determined that the appellant did not have the requisite service to establish eligibility for payment from the Filipino Veterans Equity Compensation Fund and, thus, denied his claim. A second request was made , and in February 2011, the NPRC once again verified that the Veteran did not have any qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States. Thus, no change was warranted in the prior negative service certification. None of the submitted documentation and lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203. The evidence submitted 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 Filipino Veterans Equity Compensation Fund. The NPRC has duly considered the appellant's application for VA benefits and certified that she 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 United States service department does not verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not with VA). For the foregoing reasons, the appellant does not have the requisite service to establish basic eligibility for obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund. Therefore, her claim for benefits must be denied. The Board is sympathetic to the appellant, and does not question her sincere belief that she is entitled to VA benefits, specifically in the form of payment from the Filipino Veterans Equity Compensation Fund. The Board is nonetheless bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503 , 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994). This case is decided based on application of law to the pertinent facts. Owings v. Brown, 8 Vet.App. 17 (1995); Kelly v. Derwinski, 3 Vet.App. 171 (1992) (Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant). Finally, the provisions of the law regarding notice and assistance with development have no effect on an appeal where, as here, the law, and not the underlying facts or development of the facts, is dispositive. 38 U.S.C.A. § 5103A (West 2002 & 2012); Manning v. Principi, 16 Vet. App. 534 (2002). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs