Citation Nr: 1322470 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 12-01 933 ) 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. ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The appellant alleges military service in the Philippines during World War II. This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 decisional letter of the Department of Veterans Affairs (VA), Regional Office (RO) in Manila, Philippines. 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 1. There has been no demonstration by a DD Form 214, Certificate of Release or Discharge from Active Duty, or an original Certificate of Discharge by a United States service department, that the appellant had the requisite military service as required by law for eligibility for one-time payment from the FVEC Fund. 2. The National Personnel Records Center (NPRC) has stated that the appellant had no requisite military service, to include as a member of the Philippine Commonwealth Army or the recognized guerrillas, in the service of the Armed Forces of the United States. CONCLUSION OF LAW The service requirements for eligibility to a one-time payment from the FVEC Fund have not been met. 38 U.S.C.A. § 5101(a) (West 2002 & West Supp. 2011); 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 The U. S. Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As the law is dispositive in the instant claim, the VCAA is not applicable. See also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). Nonetheless, the appellant was informed of the necessary requirements for substantiating his claim in VA correspondence dated in February 2010 and April 2010. Legal Criteria Under the American Recovery and Reinvestment Act, a one-time benefit was 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). 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. The Secretary of VA is to administer the fund consistent with applicable provisions of the Title 38 of the United States Code. For eligible persons who accept a payment from the FVEC Fund, such payment shall constitute a complete release of any claim against the United States by reason of such 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 this Act. 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. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Under 38 C.F.R. § 3.203(a), the VA may accept evidence of service submitted by a claimant, such as a DD Form 214, 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 the Department of Veterans Affairs the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). 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 within 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 his service. 38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Analysis The claims file includes a VA Form 21-4138, dated in February 2009, in which the appellant stated that he served with the USAFFE (U.S. Armed Forces, Far East) from December 1941 to February 1946. The claims file also includes photocopies of the appellant's U.S. passport front page, Social Security Administration (SSA) card, and certificate of U.S. Naturalization. In support of his claim, the appellant submitted an Affidavit for Philippine Army Personnel, in which he states that he was inducted into the USAFFE in December 1941, was a prisoner of war (POW) in June 1942, was a policeman with the Cebu police force from June 1942 to August 1942, was a civilian from August 1942 to September 1942, surrendered and was sent home by the Japanese in September 1942, was a civilian from September 1942 to October 1944, and was a guerilla with the 92nd Division from October 1944 to February 1945. The appellant also submitted an Affidavit of One and the Same Person, dated in April 2010, in which he stated that due to inadvertence and/or clerical error, his name was misspelled and his date of birth was incorrect in his Affidavit for Philippine Army Personnel. A VA Form 21-3101, Request for Information, includes a July 2010 response by the National Personnel Records Center (NPRC). It reflects that the appellant "has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces." (The request included two possible spellings of the appellant's name and his corrected date of birth.) Two photographs are also associated with the claims file. One photograph appears to be a profile of a young man in a uniform operating a radio or telephone system. The front of the photograph has the words which appear to be "SWBD Operator Black Triumph." The back of the photograph has the handwritten notation of the appellant's name and "radio operator during WWII." The second photograph depicts nine individuals, some with weapons, in various uniforms, in front of tents. The back of the photograph has the handwritten notation of the appellant's name and notes that he is the second individual from the left. As noted above, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service. 38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). The claims file does not include a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1). The documents and photographs associated with the claims file 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, the documents and photographs may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including compensation from the FVEC Fund. Moreover, as noted above the NPRC has found that the appellant did not have the requisite service. 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). 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 did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Veteran status is a prerequisite to entitlement to payment from the FVEC fund. As such, entitlement to a one-time payment from the FVEC Fund is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs