Citation Nr: 1322769 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 11 25 125 ) 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 a May 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. 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 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 April 2011 and February 2013, and the claim was subsequently readjudicated. 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 March 2009, in which the appellant stated that he served with the recognized guerillas from January 1944 to February 1946. The claims file also includes numerous other documents, to include correspondence and records from the Philippine Veterans Affairs Office (Stock Certificate Issuance Project), Philippine Veterans Bank, Philippine Department of Finance Bureau of the Treasury, and National Census and Statistics Office. It also includes an Affidavit for Philippine Army Personnel, identification cards, and an Affidavit of Two Disinterested Persons. In support of his claim, the appellant submitted an Affidavit for Philippine Army Personnel, in which he states that he was inducted into the Guerillas in January 1944, in C Company of the 1st Battalion, 3d Pang Regiment from 1944 to 1945, was attached to a US Military Police Detachment in 1945, was in Guerilla combat training school in July and August 1945, was attached to the 152nd Infantry, 38th Division from August to November 1945, was attached to the 343d Infantry, 86th Division from November 1945 to February 1946, and was discharged in February 1946. The appellant also submitted an Affidavit of Two Disinterested Persons, dated in March 2009, in which two affiants stated that the Veteran's baptismal certificate is incorrect, and they attested to his correct name. An application of Old Age Pension (Veteran) reflects that the appellant applied for benefits in 2009. He noted that he had served in the infantry; however, with regard to category of veteran, he did not check that he had been a member of the USAFFE (U.S. Armed Forces Far East), the WWII Guerillas, or the Philippine Scouts. March 2010 correspondence from the Philippine Veterans Affairs Office to the appellant reflects that the government would start to pay arrears on Total Administrative Pension to all living WWII Veterans who are over the age of 80 years old. A Bureau of Treasury Acknowledgement reflects that it is issued only to members of the Armed Forces of the Philippines and recognized guerillas. It certifies that back pay had been approved by the Veterans Back Pay Commission to the appellant for his service with C Company, 1st Battalion, 3rd Pang Regiment (Guerilla) from January 1944 to January 1945. Correspondence from the Department of National Defense Philippine Veteran Affairs Office also states that the appellant served with same unit. It notes that the "Category of Veteran" was USAFFE. A December 1986 Certification from the Ministry of National Defense and an August 2011 Office of the Adjutant General certificate reflect that the appellant served with the same unit and was paid arrears. A Department of National Defense Philippine Veterans Affairs Office Identity Sheet reflects that the appellant served with the LLCo 3rd Prov. Battalion, 2nd Pang. Regiment. A VA Form 21-3101, Request for Information, includes a January 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." Subsequent to this negative response, the RO made another request to NPRC for verification and included a copy of the appellant's above mentioned Affidavit. The April 2010 response by NPRC 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." Subsequent to the April 2010 negative response, the RO requested another verification of service from NPRC and provided NPRC with additional information, to include the Identity sheet, and appellant's letter of application for Old Age Pension, Affidavit of Two Disinterested Persons, and Philippine Veterans Affairs Office documentation. The VA Form 21-3101 includes a June 2011 response by 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." Subsequent to the June 2011 negative response, the RO requested another verification of service from NPRC and provided NPRC with additional information, to include the Certification from National Census and Statistics Office. The VA Form 21-3101 includes a March 2013 response by 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." Photographs are also associated with the claims file. They purport to show the appellant as proof that he is still alive. 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. Recognition of service by the Philippine Government is not sufficient for benefits administered by VA. This department is bound to follow the certifications by the service departments with jurisdiction over United States military records. The proper course for an 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). 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. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs