Citation Nr: 1324187 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 11-21 569 ) 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 Fund. WITNESSES AT THE HEARING Appellant, G.R. and C.D. ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund. The appellant testified at a Board hearing before the undersigned in February 2013. He waived initial agency of original jurisdiction (AOJ) consideration of evidence submitted at the hearing. A transcript of the hearing is associated with the claims file. FINDING OF FACT The service department has 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 during World War II. CONCLUSION OF LAW The appellant does not have the requisite service to establish entitlement to payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 5107 (West 2002 & Supp. 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 I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The question before the Board is whether the appellant has qualifying service to establish eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund. Because qualifying service and how it may be established are governed by law and regulations and the service department's certification is binding, the Board's review is limited to interpreting the pertinent law and regulations. Where the interpretation of the law is dispositive of the appeal, neither the duty to notify nor the duty to assist provisions of the VCAA apply. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004 (June 23, 2004). Nonetheless, the RO provided the appellant with notice in a March 2012 letter that informed him of the laws and regulations pertaining to eligibility for benefits under the Filipino Veterans Equity Compensation Fund and what type of evidence or information was needed to substantiate his claim. The appellant has also had a meaningful opportunity to participate in the processing of his claim. The Board consequently finds that he has not been prejudiced by VA's failure to notify him of the allocation of evidence-gathering responsibilities in this case. As to VA's duty to assist the appellant, at his Board hearing, he submitted additional evidence, which was accompanied by a waiver of initial AOJ consideration. See 38 C.F.R. § 20.1304. The additional evidence consisted of a certificate of birth, a letter of gratitude to the 6th Infantry Division of the Philippine Army, and Affidavits. Based on the additional evidence, the RO made another request for certification/verification of valid military service in the Armed Forces of the United States, and in June 2013, the National Personnel Records Center (NPRC) stated that the NPRC was unable to verify valid military service, based on the information/evidence submitted by the appellant. Thus, the appellant has not been prejudiced by the Board's consideration of the evidence. In this regard, the essential facts are not in dispute; the case rests on the interpretation and application of the relevant law; as such, the notice and duty to assist provisions of the law are inapplicable. See Manning v. Principi, 16 Vet. App. 534 (2002). No additional action is required. II. Filipino Veterans Equity Compensation Fund Under the American Recovery and Reinvestment Act of 2009, a one-time benefit is provided for certain Philippine Veterans to be paid from the "Filipino Veterans Equity Compensation Fund." American Recovery and Reinvestment Act of 2009 § 1002, Public Law 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. Section 1002 is entitled "Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East During World War II." Section 1002(c)(1) provides that the Secretary may make a payment from the compensation fund to an eligible person who, during the one-year period beginning on the date of enactment of the Act, submits to the Secretary a claim for benefits under this section. The application for the claim shall contain such information and evidence as the Secretary may require. Section 1002(c)(2) provides that, if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person. 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. In February 2009, the RO received the appellant's claim for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. Included with his claim were multiple documents purporting to show that he has had the requisite service to establish basic eligibility to receive the one-time payment from the Filipino Veterans Equity Compensation Fund. The documents include a photocopy of an identification card from the Philippines Office of Senior Citizens Affairs; a copy of a Form 23, Affidavit for Philippine Army Personnel, dated in March 1946, showing the appellant's unit, rank, dates of service, and date of recognition in a guerilla roster; a copy of a February 1992 application for Old Age Pension from the Philippine Veterans Affairs office in 1992, and a personal affidavit. In March and September 2010 responses to the RO's requests for certification/verification of valid military service in the Armed Forces of the United States, the National Personnel Records Center (NPRC) stated that the NPRC was unable to verify valid military service, based on the information/evidence submitted by the appellant. The RO notified the appellant that NPRC was unable to verify service as a member of the Commonwealth Army of the Philippines, including the recognized guerillas, in the service of the Armed Forces of the United States. Along with his substantive appeal, the appellant submitted additional evidence in support of the claim. The documents submitted consist of a duplicate copy of the March 1946 Form 23, Affidavit for Philippine Army Personnel, Special Orders Numbers 68 and 52 Extracts; and a Philippine Army Certificate of Honorable Discharge, dated in April 1946. Based on the additional evidence submitted, in March 2012, the RO made another request for certification/verification of valid military service in the Armed Forces of the United States. In an April 2012 response, the NPRC again found that it was unable to verify valid military service, based on the information/evidence submitted by the appellant. In May 2012, the appellant was notified that NPRC was unable to verify service as a member of the Commonwealth Army of the Philippines, including the recognized guerillas, in the service of the Armed Forces of the United States. At the hearing, the appellant submitted a copy of a Philippine certificate of birth, a letter of gratitude from the Commanding Office of the 6th Infantry Division of the Philippine Army, dated in February 1946; a Philippine Army Processing checklist; and Affidavits. Based on the additional evidence submitted, in May 2013, the RO made another request for certification/verification of valid military service in the Armed Forces of the United States. The June 2013 response reflects that the NPRC was unable to verify valid military service, based on the information/evidence submitted by the appellant. The NPRC has duly considered the appellant's application for VA benefits and has repeatedly certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. The Board is bound by those certifications. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the United States service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA). The service department determination of service is binding on VA. Duro v. Derwinski, 2 Vet App. 530, 532 (1992). Therefore, his claim for benefits must be denied. Because the disposition of this claim is based on the law, the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs