Citation Nr: 1322188 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 12-06 664 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The appellant asserts that he had service from March 1944 to January 1946 in the recognized guerrillas, to qualify him for recognized service in the United States Armed Forces, Far East (USAFFE). This appeal to the Board of Veterans' Appeals (Board) is from a January 2010 decision by the RO in Manila, the Republic of the Philippines, which determined he did not have qualifying service to be eligible for the one-time payment from the FVEC Fund. 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 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 receiving the one-time payment from the FVEC 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 FINDINGS AND CONCLUSION Since the appellant's claim is being denied as a matter of law, the duty-to-notify-and-assist provisions of the Veterans Claims Assistance Act (VCAA) do not apply. See Manning v. Principi, 16 Vet. App. 534 (2002) (VCAA has no effect on appeal limited to interpretation of law); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA does not apply because the issue presented is solely of statutory and regulatory interpretation and/or the claim is barred as a matter of law in that it cannot be substantiated. See Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also VAOPGCPREC 5-2004 (June 23, 2004). Thus, there is no notice or assistance that would be of any tangible benefit. The appellant asserts that he served as a recognized guerrilla during World War II. In his February 2009 claim, he said he served in D Company Hunters FHR, and I Company 3rd Battalion from March 1944 to January 1946. A sworn affidavit for Philippine Army Personnel dated in December 1945 reflects that the appellant was a civilian guerrilla with I Co. 2d Battalion 44th Prov. Attached 86th Division APO 450. He was formerly with D Co., Hunters FHR from March 1944 to March 1945, with I Co. 3d Battalion FHR from March to October 1945. In October 2010, he said his unit was I Company, 3d 44th Prov. Inf., Attached 86th Division, and Hunters FHR. He has submitted supporting documents from the Philippine government, including an October 2010 certification from the Armed Forces of the Philippines showing that he was a guerrilla who joined D Company, Hunters FHR in March 1944, and was discharged in January 1946. In August 2011, the appellant submitted a copy of the personnel roster of I Company, 3rd Battalion, First Hunters Regiment, dated in July 1945, which included his name. The appellant submitted a sworn affidavit dated in April 2009 from T.M.M. and D.S.S., who stated that they know the appellant, and that he is a World War II Veteran who was a recognized guerrilla in I Company, Hunters FHR. They stated that there was a typographical error in his military service records, and that he was with "I" Company, not "D" Company. The appellant submitted a sworn affidavit dated in March 2012 from L.V.P. and J.T.A., who stated that they fought during World War II and their recognized guerrilla unit was L Company, 3rd Battalion, 44th Division of the Hunters ROTC. They said the appellant was in I Company, 3rd Battalion, 44th Division of the Hunters ROTC during World War II. They said they saw the appellant in a U.S. Army field hospital during the war. Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine Veterans to be paid from the FVEC Fund. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Section 1002 addresses Payments to Eligible Persons Who Served in the U. S. 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(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 cases for VA benefits where the requisite Veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on such matters is conclusive and binding on VA. See 38 C.F.R. § 3.203(c), Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria, 118 F. 3d at 749. In short, under 38 C.F.R. § 3.203, a claimant is ineligible for VA benefits based on Philippine service unless a United States service department documents or certifies his or her service. Soria, 118 F. 3d at 749. Here, the NPRC has declined to certify the appellant's claimed service on six separate occasions. In an August 2009 response, the NPRC indicated he "has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces." In subsequent responses in August 2011, December 2011, and January 2012, the NPRC made the same statement after reviewing additional information submitted by the RO or the appellant. In March 2013, after considering the appellant's additional evidence, the NPRC stated that no change is warranted in the prior negative service certification. Detailed information regarding the dates, locations, and units of his alleged service were submitted and reviewed, and all identifying information, such as date of birth, parentage, and place of birth, were also considered. All information submitted by him has been referred to the NPRC for review. Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008). He contends that he did indeed have the requisite service during World War II. Unfortunately, where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The lack of certification from the NPRC is binding on VA over the submitted certifications from the Philippine Army. ORDER Entitlement to a one-time payment from the FVEC fund is denied. ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs