Citation Nr: 1322762 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-41 380 ) 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 Donna D. Ebaugh, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the appellant's claim for a one-time payment from the FVEC Fund. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the document in such file reveals that it is either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 service department has certified 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 during World War II. CONCLUSION OF LAW The appellant does not have the requisite service to entitle him to payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 5107 (West 2002 & 2012); 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 At the outset, the Board observes that 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 in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). See also 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); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). The appellant, in written statements and other documents of record, contends that he had recognized guerrilla service in the Philippine Commonwealth Army during World War II. As such, he asserts that he is entitled to a one-time payment from the FVEC Fund. By way of history, 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 served in the above units did not have qualifying active service for the purpose of receiving VA benefits. 38 U.S.C.A. § 107. The particular benefit claimed in the instant case originated on February 17, 2009, when President Barack H. Obama signed the American Recovery and Reinvestment Act to promote "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization." See Pub. L. No. 111-5, 123 Stat. 115 (2009). That legislation established the FVEC Fund, which is charged with providing one-time payments to "eligible persons" in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). 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)(1). If an eligible person who has filed a timely claim for benefits under Act dies before payment is made, the payment shall be made instead to the surviving spouse, if any, of the eligible person. Id. § 1002(c)(2). 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) (2012). 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; 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 (2012); Soria, supra. In his timely-filed April 2009 application for compensation, the appellant asserted that he served as a recognized guerilla with Squadron 24, 3rd Platoon, 1st Sqd., 2nd Battalion Rcg., from February 1944 to September 1945. However, he did not provide any documentation to support the claim at the time that he initially filed the claim. The RO had previously denied benefits for a separate claim, in 1993 and 1994, based on lack of veteran status. With respect to the present claim, the RO initially denied the claim for FVEC in July 2009 based in part on the November 1994 service department response that the appellant did not have any recognized service in the Philippine Commonwealth Army, including as a recognized guerilla. In March 2010, the appellant filed his notice of disagreement contesting the RO's decision and attesting to his service as a soldier in the recognized guerillas. He explained his role as a messenger and spy during the war. In an effort to corroborate his own lay assertions, he also provided a "Certificate of Recognition" signed by his former commanding officer, indicating that he had service in Squadron 24, 2nd Battalion and that his unit "HUKBALAHAP" was recognized by the Philippine government as well as in World War II history books. He also supplied a copy of his Philippine Veterans Affairs Office identification card. He also reported that he received U.S. citizenship as a result of his service as a Filipino veteran. Thereafter, the RO contacted the National Personnel Records Center (NPRC) and requested verification of the appellant's purported service. However, a January 2011 response from the NPRC indicated that the appellant had not accrued 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 issued a supplemental statement of the case that the appellant did not have the requisite service to establish eligibility for payment from the FVEC Fund and denied his claim. During the course of the review, the RO again sought verification from the NPRC in September 2012 and sent the NPRC all of the appellant's lay statements and evidence he submitted in support of his claim. However, in November 2012, the NPRC responded indicating that there was no change warranted in the prior negative service verification. In the January 2013 supplemental statement of the case, the RO also addressed the appellant's concern that his records may have been lost in the fire at the NPRC in 1973, and explained that the lost records did not include records of the recognized guerillas as they were housed elsewhere at the time. Further, the RO noted that the list of veterans with recognized military service was still available despite the fire. In January 2013, the NPRC again confirmed that the appellant did not have eligible service. As noted above, statements and documentation pertaining to the appellant's reported service in the recognized guerillas have been received from him in an effort to support his claim. 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. In this regard, the evidence includes only statements from the appellant and documents issued by the Filipino government. 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 NPRC has duly considered the present application for VA benefits and has repeatedly 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. The Board 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). The Board is sympathetic to the appellant's situation. However, the pertinent legal authority governing entitlement to payments from the FVEC Fund is clear and specific: It must be shown by verification of the United States service department that the underlying claimant has qualifying service. The Board is bound by the law as written. As, on these facts, there is no legal theory that would permit a one-time payment from the FVEC Fund, the appellant's claim must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs