Citation Nr: 1324456 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 11-26 466A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. WITNESSES AT HEARING ON APPEAL Appellant and Witnesses ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The appellant alleges that she had recognized guerrilla in the service of the Armed Forces of the United States during World War II. This matter is before the Board of Veterans' Appeals (Board) on appeal of administrative decision issued in March 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The appellant testified before the undersigned Veterans Law Judge in July 2012. A transcript of the hearing is of record. The appellant submitted additional evidence at this hearing that was accompanied by a waiver of initial consideration by the agency of original jurisdiction (AOJ). 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), the federal agency charged to verify service for a 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 Armed Forces of the United States. CONCLUSION OF LAW The appellant does not have recognized active military service as required to establish eligibility for FVEC Fund benefits. 38 U.S.C.A. § 501(a) (West 2002); 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 FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The VCAA does not apply in this case because there is no reasonable possibility that any further assistance would aid the appellant in substantiating the claim. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Governing Law The appellant seeks a one-time payment from the FVEC Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009) (to be codified in Title 38 of the United States Code: Veterans' Benefits). 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. Under Section 1002, an eligible person is any person: (1) who served 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 (2) any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and (3) any eligible person was discharged or released from service under conditions other than dishonorable. See 38 C.F.R. § 3.40 (eligibility for VA benefits for certain Philippine service). For the purpose of establishing evidence of service, the Department of Veterans Affairs 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). When the claimant does not submit evidence of service or the evidence submitted does not meet the stated requirements, the Department of Veterans Affairs will request verification of service from the service department. 38 C.F.R. § 3.203(c). The NPRC is the federal agency charged to verify service for a service department. The findings of the U.S. service department verifying a person's service are binding on VA for the purpose of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992). Analysis The appellant alleges that she served from 1942 to 1945 with a recognized guerilla unit of the Commonwealth Army of the Philippines that was specifically recognized as being in the service of the Armed Forces of the United States. As proof of qualifying service, the appellant submitted several pieces of evidence in March 2009. Specifically, she provided a copy of her voter identification card and an identification card issued by the Republic of the Philippines, Office of Senior Citizen Affairs, in February 1995. The appellant also provided her Application for Old Age Pension that was submitted to the Philippines Veterans Affairs Office (PVAO) in March 1992. She also submitted a joint affidavit from S. L., G. S., and J. L., all of whom attested that the appellant served with the Hukbalahap underground guerilla resistance movement as a First Aider of the RC-7 Hukbalahap Unit, in the province of Bulacan. The affidavit was signed in July 1997. In November 2009, the RO submitted a verification of service request to the National Personnel Records Center (NPRC), noting that the appellant was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained at the RO. The request cited the appellant's name as Candelaria Cruz Mendoza, and also provided the date and place of her birth, the names of her parents, her reported dates of service and her reported unit of service (RC 7 Hukbalahap). In December 2009, the NPRC reported 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. In January 2010, the RO submitted another request to NPRC, noting there was an additional name under which the appellant's service might be verified, Candelaria Geron Cruz. In February 2010 and in May 2010, the NPRC responded 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. In a Notice of Disagreement (NOD) submitted in July 2010, the appellant stated there was an additional name under which her service could be verified, Mendoza Candelaria Cruz. Along with the July 2010 NOD, the appellant provided a letter of certification from the PVAO dated in June 1998. The letter certified that the appellant was a veteran of World War II/Philippines Revolution who served with the RC 7 Hukbalahap Unit with the rank of 1st Aider. She also provided copies of pension benefit checks that she had received from the PVAO between December 2000 and May 2002. She also submitted copies of photo identification cards issued by: 1) the American Legion; 2) the Republic of the Philippines Commission on Elections; and 3) the Veterans Federation of the Philippines. That same month, the appellant submitted a Joint Affidavit from L.T., D.D., and R.P., all of whom attested that the appellant served with the Hukbalahap underground guerilla resistance movement as a First Aider, in the province of Bulacan. The affidavit was signed in June 1997. In June 2011, the appellant submitted a VA Form 9 which was accompanied by a written statement in support of her claim. In this statement, she asserted that the Philippine Commonwealth failed to list her military service due to gender discrimination. She further asserted that former Private P.C. (an enlisted United States Armed Forces soldier) could verify that she served. Along with the June 2011 statement, the appellant submitted copies of two photo identification cards. The first was issued by the Republic of the Philippines Office of Senior Citizen Affairs in February 1995. The second card was issued by the PVAO in May 2009, and identified her as a World War II Veteran. The appellant also submitted a Statement of Service that had been issued by the PVAO in November 1996. The Statement of Service characterized the appellant as a veteran and indicated that she was inducted into military service in 1942 with the rank of private. This form further indicates that she served with the Hukbalahap Intelligent Unit RC-7. Additional forms of evidence were received in June 2011, including a Statement of Service issued by the PVAO in November 1996. The appellant also provided an Attestation signed by L.T. (an Overall Commanding Officer or duly authorized staff office) and dated in November 1996. L.T. attested to the fact that the appellant served as a guerilla during World War II. The appellant also submitted a Joint Affidavit signed by J.S. and C.H., both of whom attested that the appellant served with the Hukbalahap Resistance Movement from 1941 to 1945. The affidavit was signed in November 1996. In addition, an Honorable Discharge Certificate, dated in November 1996, was received. The certificate indicated that the appellant served during the Hukbalahap as a recognized guerilla, and as an integral part of the Allied Forces, from 1942 to 1945. Her unit was listed as Hukbalahap, Intelligent Unit, RC-7. In March 2012, the RO submitted another request to the NPRC, specifically noting each piece of additional evidence the appellant had submitted since the last response was received from NPRC in May 2010. In April 2012, the NPRC responded and stated 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. At the hearing held in January 2013, the appellant testified that she served as a member of the movement which was an association against the Japanese, and recognized by the Philippine Government. She testified that she was one of those who treated the wounded soldiers and helped the American Forces fight the Japanese. The appellant also indicated that her claim for old age pension was approved under master lease number 87-32500 as a 'veteran,' as of November 5, 1977. At the hearing, the appellant also submitted a Certification, dated in January 2010, from the PVAO. The Certification indicated that the appellant's claim for Old Age Pension had been approved, effective April 9, 1990. In June 2013, the NPRC reported 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. Philippine veterans are not eligible for VA benefits unless a United States service department certifies their qualifying service. Duro v. Derwinski, 2 Vet. App. 530 (1992). Review of the evidence in this case shows the appellant has not had qualifying service as certified by the service department. Accordingly, the threshold requirement for legal eligibility for one-time payment from the FVEC Fund is not shown. 38 U.S.C.A. § 107; 38 C.F.R. § 3.41. The documents submitted by the appellant are not official documents of a U.S. service department. Therefore, these documents fail to satisfy the requirements of 38 C.F.R. § 3.203(a) as acceptable proof of service. As the documents were not issued by a U.S. service department, the RO sought verification of service from the NPRC, the federal agency charged to verify service for a service department. The NPRC certified in November 2009, February 2010, May 2010, March 2012, and in June 2013 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 acknowledges that the appellant is competent to report the circumstances of her service. Washington v. Nicholson, 19 Vet. App. 362 (2005). However, only the service department can establish if and when a person was serving on qualifying active service. Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994). The findings of the U.S. service department through the NPRC are binding on VA for the purpose of establishing service in the U.S. Armed Forces. Duro, 2 Vet. App. 530, 532 (1992). The appellant has provided no further evidence or information that would warrant a request for recertification from a U.S. service department, and no further development is needed. See Sarmiento v. Brown, 7 Vet. App. 80 (1994) (recertification with evidence of erroneous spelling of name); Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (recertification when there is newly received relevant evidence since the negative certification). As the appellant has not submitted acceptable evidence of service under 38 C.F.R. § 3.203(a), and as a U.S. service department has not verified her service under 38 C.F.R. § 3.203(c), she is not legally eligible for the FVEC Fund benefit under the American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5. The Board is sympathetic toward the appellant, but is bound by law, and its decision is dictated by the relevant statutes and regulations. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Accordingly, the law is dispositive, and the claim must be denied because of the lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs