Citation Nr: 1322484 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 13-09 588 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Entitlement to one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 RO decision, which denied entitlement to 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). 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 requirements for payment from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. § 101 (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5, 123 Stat. 115, 200-202 (February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application for benefits, VA is required to provide notification and assistance to a claimant in substantiating a claim. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). When an appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA must inform the appellant of the information or evidence necessary to prove Veteran status. Palor v. Nicholson, 21 Vet. App. 325 (2007). The appellant was provided a letter dated in April 2012, which included a description of the requirements for establishing entitlement to payment under the FVEC, and notified him of the specific service requirements. Additional notice was provided in a September 2012 letter and in the January 2013 statement of the case, which discussed the evidence received from the appellant, and the RO's requests to verify the claimed service. He was specifically informed that his service was not verified by the responsible United States government agency. The Board finds that any notification errors are not prejudicial because the appellant is not entitled to the benefit as a matter of law. Valiao v. Principi, 17 Vet. App. 229 (2003); Palor v. Nicholson, 21 Vet. App. 325 (2007). All identified evidence relative to this claim has been obtained and associated with the claims file. The appellant's file contains a single document which is not written in the English language and has not been directly translated into English. This document consists of a letter written by the Veteran's son on his behalf. The letter was forwarded to the RO by the Office of the President's Presidential Action Center in Malacanang, Manila. The Presidential Action Center forwarded it with a cover letter wish summarizes the enclosed plea on behalf of the Appellant; thus, the contents of the letter are not entirely unknown. Given the situation set forth below, that the appellant is not entitled to the benefit sought as a matter of law, in light of the multiple certifications made by the NPRC, the Board determines that further translation of this letter is not necessary to an equitable and informed decision. Therefore, the Board finds that the duty to assist has been satisfied. The Board finds that no further notification or development action is necessary on the issue now being decided. No reasonable possibility exists that any additional assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The duty to notify is not applicable to matters in which the law, and not the evidence, is dispositive. Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board finds that the appellant's appeal must be denied as a matter of law. The appellant claims that he is entitled to a one-time payment from the FVEC Fund, based on World War II service with a United States Army Infantry regiment. Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain eligible Philippine veterans to be paid from the FVEC Fund. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted 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 (enacted February 17, 2009). For the purpose of establishing entitlement to benefits, 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 VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a) (2012). When the claimant does not submit evidence of service or the evidence submitted does not meet those requirements, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c) (2012). Here, the appellant stated, in his claim received in March 2009, that he was born in July 1916, and that he served with the 88th Infantry Regiment from January 1940 to June 1944. In support of his claim, he submitted multiple documents showing that he holds Veteran status from the Philippine government: paperwork showing that he is a shareholder in the Philippine Veterans Bank and a copy of his Philippine Veterans Affairs Office application for old age pension. He also submitted documents showing his identify, to include copies of identification cards issued by the Commission on Elections and the Office of Senior Citizens Affairs, and an affidavit of former neighbors who recalled the event of his birth in July, 1916 in Kanluhangon, Tabuelan, Cebu. Lastly, he submitted what appears to be a copy of a very old and tattered document indicating that he had been discharged from the 88th Infantry Regiment in June 1944 on account of being infected with pulmonary tuberculosis. All of these documents were forwarded to the NPRC by the RO. The RO noted additionally, that the appellant's name was not listed in the Reconstructed Recognized Guerrilla Roster maintained at the Manila RO. In separate responses dated in February 2010 and November 2010, the NPRC confirmed 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." In December 2011, the appellant provided a copy of an Affidavit for Philippine Army Personnel. This form indicated that the appellant had been born in Borbon, Cebu in July 1916, and had served with a Field Artillery Battalion. He also submitted a copy of a certificate issued by the Adjutant General of the Philippine Army in September 2011. This certificate also indicated that the appellant had been born in Borbon Cebu, in July 1916; and that he had served with a Field Artillery Battalion between November 1941 and December 1945. The RO provided these documents to the NPRC, and again, the NPRC in March 2012, November 2012, and January 2013, certified that 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. Thus, the NPRC has certified, on five occasions, 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. 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. Venturella v. Gober, 10 Vet. App. 340 (1997); Dacoron v. Brown, 4 Vet. App. 115 (1993); Duro v. Derwinski, 2 Vet. App. 530 (1992). 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 F.3d 747 (Fed. Cir. 1997). The Board has carefully considered the documentation submitted by the appellant, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The documents submitted by the appellant were not issued by a United States service department, nor do they contain the necessary information to establish entitlement to the benefit sought. Furthermore, they contain multiple inconsistencies, including differing birthplaces, different battalions with which he claims to have served, and different service dates, raising questions as to their authenticity. In any case, the Board is bound by the service department's 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). As the service department has certified that the appellant did not have the requisite service to qualify for payment from the Filipino Veterans Equity Compensation Fund, the appeal must be denied. Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426 (1994). 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). The appeal must therefore be denied. Continued on next page ORDER One-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs