Citation Nr: 1322550	
Decision Date: 07/15/13    Archive Date: 07/24/13

DOCKET NO.  10-43 365	)	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

R. Giannecchini, Counsel





INTRODUCTION

This matter comes to the Board of Veterans' Appeals (Board) following an appeal of a January 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  

In December 2010, the Vice Chairman of the Board advanced this appeal on the Board's docket on his own motion, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012).

In February 2011, the Board remanded the appeal to the RO for additional development.  Following completion of the development requested, the RO issued supplemental statements of the case (SSOC) in August 2011, February 2013 and May 2013, which continued the denial of the claim.  The appeal has since been returned to the Board for further appellate review.   


FINDING OF FACT

The National Personnel Records Center (NPRC) has certified that the claimant 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

As the criteria for basic eligibility for a one-time payment from the FVEC Fund are not met, the claim is without legal merit.  38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009); 38 C.F.R. § 3.203 (2012).  



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012).

Here, as discussed below, there is no dispute as to the pertinent facts, such as the name or unit of service for the claimant.  The claimant has not made the RO or Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal.  

Pursuant to both 38 C.F.R. § 3.203(c) and VA's statutory duty to assist, new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review.  Here, the RO has submitted all pertinent identifying information for verification to the NPRC.  

The Board finds that there is no further assistance that would reasonably be expected to aid in deciding the claim.  Resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits, including that under the FVEC Fund.  

II.  Analysis

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 (Feb. 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 such service.  Nothing in the Act, however, 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.  Id. § 1002(h).  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 to VA a claim for benefits under the Act.  The application for the claim shall contain the information and evidence VA requires.  Id. § 1002(c).  

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 a 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 such service under conditions other than dishonorable.  Id. § 1002(d).

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).  See 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 and not with VA.  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; Soria, 118 F.3d 747.

In a claim received in February 2009, the claimant provided identifying information and contended that he was eligible for the one-time payment from the FVEC fund as a result of service as a "Recognized Guerilla."  He identified his unit as the following:  L Co. 3rd Bn. 71st Regt. ECLGA.  The claimant reportedly served from September 20, 1943, to December 5, 1945.  The claimant's information was submitted to the NPRC.  In December 2009, the NPRC notified the RO that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  In a January 2010 decision, the RO denied the claim.  

In February 2010, the RO received two documents from the claimant.  One document, dated January 24, 1946, was an "Affidavit" of the claimant's service.  The Affidavit noted that the claimant had joined L Co. 3rd Bn. 71st Inf. on September 20, 1943, and was assigned as a camp guard with the rank of private first class (PFC).  The Affidavit also noted that on "January 22, 1946," the claimant was "processed into the Philippine Army" at the grade of PFC.  Furthermore, the claimant was also noted to have served with the "511 E Co.A. Paratroopers" from February 7, 1945, to February 28, 1945; with the "595 S.A.W.BN." from March 1, 1945, to March 9, 1945; and with the "373 AAA S/Light BN" from March 10, 1945, to December 5, 1945.  The RO also received from the claimant a February 1996 document (identified as AGNR2) created by the General Headquarters Armed Forces of the Philippines.  The document noted that according to records at headquarters, the claimant's military status had been as a guerilla and he had joined L Co. 3rd Bn. 71st Regt. ECLGA in September 1943.  His processing date was reported as January 22, 1946, and his discharge date was January 30, 1946.  

The claimant's information was submitted to the NPRC.  In September 2010, the NPRC notified the RO that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  

Thereafter, in January 2011, the Board received from the claimant a copy of a "general orders" document calling the claimant into service.  The document address heading included "USAFFE Luzon Guerilla Armed Forces, East Central Luzon Guerilla Area, Headquarters, 71st Infantry."  (Parenthetically, the acronym USAFFE stands for United States Armed Forces of the Far East.)

The general orders document noted that on September 20, 1943, the claimant "having been inducted into the service of the guerilla forces of the Commonwealth of the Philippines, is hereby called to duty with the Manila Military District, ECLGA, and assigned as Company "L" 3rd Bn. 71st Infantry."

The claimant's information was submitted to the NPRC.  In May 2011, the NPRC notified the RO that no change was warrant in its prior negative certification (i.e., the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces).  

In April 2013, the RO received from the claimant a newspaper article.  The article discussed a United States federal circuit court's holding that Filipino veterans were not limited in the poof of qualifying military service that could be submitted to prove eligibility for naturalization as United States citizens.  See Almero v. INS, 18 F.3d 757 (9th Cir. 1994).  

With respect to Almero, above, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Soria discussed the Almero case.  In particular, the Federal Circuit noted, 

In Almero, the Ninth Circuit held that section 405 of the Immigration Act of 1990, codified at 8 U.S.C. § 1440, which pertains exclusively to immigration and naturalization, does not limit certification to documents generated by the United States Department of the Army, but rather allows consideration of Philippines-generated documentation to establish service in the Philippine Army.  Almero, 18 F.3d at 763.  The Immigration Act, in other words, allows Philippine veterans to rely on Philippine-generated documentation to prove veterans' status directly, without necessarily requiring certification by a United States service department.

Soria at 749.

The Federal Circuit, however, went on to note that the United States Court of Veterans Appeals (currently known as the United States Court of Appeals for Veterans' Claims) had correctly determined that qualifying service in the Philippine Army under the Immigration Act was not at issue in Soria.  Instead, the relevant issue was qualifying service under Title 38 of the United States Code and its regulations.  The Federal Circuit in Soria ultimately held that Philippine veterans are not eligible for VA benefits (which include the one-time payment from the FVEC Fund) unless a United States service department documents or certifies their service.

Here, the claimant has submitted statements and documentation pertaining to his military service.  However, none of that documentation or lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203.  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.  

The Board has considered the claimant's contentions as well as the submitted evidence.  The Board is mindful that the title of Section 1002 of the American Recovery and Reinvestment Act is "PAYMENTS TO ELIGIBLE PERSONS WHO SERVED IN THE UNITED STATES ARMED FORCES IN THE FAR EAST DURING WORLD WAR II."  Under Section 1002(a)(3), the following history is noted,

The regular Philippine Scouts, the new Philippine Scouts, the Guerilla Services, and more than 100,000 members of the Philippine Commonwealth Army were called into the service of the United States Armed Forces of the Far East on July 26, 1941, by an executive order of President Franklin D. Roosevelt.   

As noted above, except for the "general orders" document's address heading which notes "USAFFE Luzon Guerilla Armed Forces," the military-related documents submitted by the claimant do not reflect any USAFFE service.  

With respect to the above, the NPRC has duly considered the claimant's application for the FVEC benefit and reviewed the above discussed documents (to include the "general orders" document) submitted by the claimant.  It has certified that the claimant 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.  The Board emphasizes that it is bound by that certification.  See 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 within the service department, not with VA).  

Therefore, the Board finds that the claimant has not met the basic eligibility requirements for a one-time payment from the FVEC Fund.  In light of this fact, there is unfortunately no legal basis on which the claimant is entitled to one-time payment from the FVEC Fund.  As the law, and not the evidence, is dispositive in this case, the claim on appeal must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

The claim for a one-time payment from the FVEC Fund is denied.



____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs