Citation Nr: 1324794 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 11-31 717A ) 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 M. Scott Walker, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 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) 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. CONCLUSION OF LAW The service requirements for eligibility to a one-time payment from the FVEC Fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that because the claim at issue is limited to statutory interpretation, the notice and duty to assist provisions under the Veterans Claims Assistance Act of 2000 do not apply in this case. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002). VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004). 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 (February 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 that 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 the Act. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). 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 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and was discharged or released from service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). 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 with 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 the claimed service. 38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). In a February 2009 claim, the appellant provided his identifying information and contended that he was eligible for a one-time payment from the FVEC Fund as a result of service in the Bohol Brigade, from April 9, 1942, to December 31,1944. However, after a search by NPRC in June 2009, it was noted in August 2009 that a copy of the Affidavit for Philippine Army Personnel (Form 23) was required in order to complete a search. The RO requested this information from the appellant in November 2009, though the evidence was unavailable. Further, the appellant was not able to provide his Army serial number. A second request was sent to NPRC in March 2010, wherein the RO noted that this form was unavailable. Instead, a copy of the OTAG/NRD (certificate of military service) was attached. In July 2010, NPRC certified that the appellant had no service as a member of the Philippine Commonwealth Army, to include the recognized guerillas, in the service of the U.S. armed forces. Consequently, the RO determined that the appellant did not have the requisite service to establish eligibility for payment from the FVEC Fund and, thus, denied his claim. During the course of his appeal, the appellant has submitted additional documentation contesting the RO's decision and attesting to his qualified service. That evidence includes several statements from the appellant in which he indicated that his name was misspelled, hence the negative search response, and treatise evidence indicating that many Filipino World War II veterans, including recognized guerillas, were omitted from the NPRC list. Thus, the appellant argued that his omission from this list did not necessarily negate the fact that he served as a member of the Commonwealth Army of the Philippines, and specifically as a recognized guerilla. He also submitted a Certification from the Office of the Adjutant General, Armed Forces of the Philippines, to verify his rank as a corporal in B Co. Naga Camarines Sur (SPAV), not carried in the Reconstructed Recognized Guerilla Roster (RRGR), with no record of pay in the file, and per his own records, he received pay from May 1945 to June 1945. There was no record of discharge, and there was no F-23 or F-24 on file. He submitted an affidavit dated in November 2010 from his former commanding officer of the B Co. 2nd Battalion 1st Regiment, Tangcong Vaca, Bicol Brigade, to which he attested that due to a clerical error, the appellant's name was misspelled in the roster of troops submitted for recognition. An additional affidavit, from an additional commanding officer, essentially echoed the evidence discussed in the preceding paragraph, noting that the appellant was personally known to him, that he was assigned with the Special Infantry Battalion, TGVU, and was recognized as a corporal, B Co., 2nd Regiment, and simultaneously as Battalion Commander and Regimental Commander. The same misspelling was noted, and the author believed that it must have been a clerical error. Taking this into account, the RO requested an additional records search, this time using both names as supplied by the appellant, along with each affidavit of record, and the Certification from the Philippine Veterans Affairs Office, as well as lay statements of record. Again, the NPRC provided a negative response, precluding basic eligibility to VA benefits, to include the FVEC fund. The Board notes that neither the submitted documentation, nor the lay evidence of record, qualifies as acceptable proof of service. 38 C.F.R. § 3.203 (2012). The record does not show that the evidence was issued by the service department, as the NPRC was unable to verify that information, nor does it contain the necessary information to establish entitlement to the benefit sought. As such, the appellant is not considered a veteran for VA purposes, and therefore has not met the threshold requirement for eligibility to receive VA benefits. NPRC has duly considered the appellant's application for VA benefits and 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 that certification. 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 with the service department, not with VA). Despite the evidence submitted in support of his claim, the Board concludes that the appellant does not meet the requisite legal requirements for obtaining a one-time payment from the FVEC Fund. Therefore, his claim for benefits must be denied. In reaching this conclusion, the Board remains sympathetic to the appellant and does not question the sincerity of his belief that he is entitled to VA benefits, specifically in the form of payment from the FVEC Fund. Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2012); Harvey v. Brown, 6 Vet. App. 416 (1994). ORDER The appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund, and the claim is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs