Citation Nr: 1324912	
Decision Date: 08/06/13    Archive Date: 08/13/13

DOCKET NO.  10-48 820	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

L. Durham, Counsel










INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 administrative decision of the VA RO in Manila, Philippines, which denied the claim 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).


FINDINGS OF FACT

1.  The evidence does not reflect that the documents submitted by the appellant were issued by the United States service department, a public custodian of records, or an accredited agent, attorney, or service organization representative who successfully completed VA-prescribed training on military records.

2.  In May 2010 and April 2013, 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 criteria for obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund have not been met.  38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2011); 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

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), with implementing regulations published at 66 Fed. Reg. 45, 620 (Aug. 29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.316(a) (2012), describes VA's duty to notify and assist claimants in substantiating claims for VA benefits.  

In a case such as this, where the pertinent facts are not in dispute and the law is dispositive, there is no additional information or evidence that could be obtained to substantiate the claim, and the VCAA is not applicable.  See Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (citing Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that VCAA does not apply where there is extensive factual development in a case, reflected both in the record on appeal and the Board's decision, which indicates no reasonable possibility that any further assistance would aid the claimant in substantiating his claim).  See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also Manning v. Principi, 16 Vet. App. 534 (2002); Mason v. Principi, 16 Vet. App. 129 (2002); Livesay v. Principi, 15 Vet. App. 165 (2001); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).  

As will be discussed in further detail below, the appellant's claim is being denied solely because of a lack of entitlement under the law.  Accordingly, the Board has decided the appeal on the current record without any further consideration of the VCAA.  However, the Board notes in passing that the appellant has been provided the opportunity to submit evidence, he was notified of his opportunity to request a hearing, and he was notified in the October 2010 statement of the case (SOC) and in June 2009 and February 2012 letters of the criteria that needed to be met to substantiate his claim.  Further, he was provided an opportunity to respond before the claim was readjudicated in the May 2013 supplemental statement of the case (SSOC). 

Pursuant to both 38 C.F.R. § 3.203(c), new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review.  Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008).  After the initial denial was made in this case, the appellant submitted additional documents and information in support of his assertion of service in the recognized guerrillas of the Philippine Commonwealth Army.  The NPRC was again asked to verify the appellant's alleged service in compliance with Capellan.  However, the NPRC concluded again in its April 2013 response that the appellant did not have service as a member of the Philippine Commonwealth Army, to include the recognized guerrillas, in the service of the United States Armed Forces.  The appellant was notified of the NPRC's findings in the May 2013 SSOC.  The appellant has submitted no additional documentary evidence; thus, there is no duty under Capellan to obtain an additional certification of service.  Id. 

As there is no legal entitlement to the benefit claimed, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim.  Thus, any deficiencies of notice or assistance are rendered moot.  See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim).

II.  Analysis

In 2009, under the American Recovery and Reinvestment Act, 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 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).  Payments for eligible persons will be in the amount of either $15,000 for United States citizens or $9,000 for non-United States citizens.

For eligible persons who accept a payment from the Filipino Veterans Equity Compensation 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 that Act. 

Section 1002 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II.  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.

For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant (or sent directly to VA by the service department), such as 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.  A copy of an original document is acceptable if the copy was issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody or, the copy was submitted by an accredited agent, attorney or service organization who has successfully completed VA-prescribed training on military records, and who certifies that it is a true and exact copy of either an original document or of a copy issued by the service department or a public custodian of records; and (2) the document contains needed information as to the length, time, and character of service; and (3) in the opinion of VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a) (2012).

The appellant contends that he was inducted into the recognized guerrillas of the Philippine Army on May 10, 1942, and was discharged on October 31, 1945.  The appellant has not submitted a Department of Defense Form 214, Armed Forces of the United States Report of Transfer of Discharge (DD-214), or an original Certificate of Discharge.

However, the appellant has submitted several documents in support of his claim.  Specifically, he submitted a June 2005 Certification document from the General Headquarters Armed Forces of the Philippines Office of the Adjutant General.  This document certified that the Veteran served with H Co 121st Inf USAFIP-NL with a May 10, 1942, revised date of recognition.  A date of January 2, 1944, was also listed with the revised date of recognition.  

Additionally, the Veteran submitted a January 2010 Certification document from the General Headquarters Armed Forces of the Philippines Office of the Adjutant General.  This document certified that the Veteran served with H Co 121st Inf USAFIP-NL (Guerilla Roster 1948).  The revised date of recognition was noted a "10 May 42 (Guerilla Roster 1948) P O S - 2 Jan 44.
 
Further, the Veteran submitted a Certification document in July 2010 from the Department of National Defense Philippine Veterans Affairs Office, which certified that the Veteran is a recipient of the Old Age Pension from this agency.  

The Board has considered these documents.  For example, the January 2010 Certification document noted a revised date of recognition before July 1, 1946, and indicates service in the Guerilla Roster 1948.  This document is signed by V.S.P, Admin Officer III. 

However, this document, along with the other documents that the appellant submitted in support of his claim do not appear to be issued by the United States service department.  Moreover, even if the original copies of these documents were issued by the United States service department, as the appellant submitted these documents himself, it does not appear that these copies were issued directly by the service department.  Further, there is no evidence that these copies were issued by a public custodian of records who certified that they are true and exact copies of the documents in the custodian's custody, nor does it appear that these copies were submitted by an accredited agent, attorney, or service organization representative who successfully completed VA-prescribed training on military records, and who certified that they are true and exact copies of either an original document or of a copy issued by the service department or a public custodian of records.

Therefore, as the documents submitted by the appellant do not meet the criteria of 38 C.F.R. § 3.203(a)(1), the Board concludes that these documents are not sufficient to establish the appellant's guerilla service prior to July 1, 1946.  As such, these documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including the one-time payment from the Filipino Veterans Equity Compensation Fund.  The appellant's service must be, therefore, obtained from the service department.  See 38 C.F.R. § 3.203(c).

The RO attempted to confirm the appellant's service through the NPRC.  The appellant's pertinent information, including name, date of birth, place of birth, dates of service, and branch of service was submitted to the NPRC, who certified in May 2010 and April 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 notes that the Veteran indicated in a December 2010 Affidavit of Discrepancy that his name was erroneously spelled when he requested certification to the AFP, Office of Adjutant General Camp Emilio Aguinaldo, Quezon City.  However, both the correct and incorrect spellings of the Veteran's name were provided to the NPRC for the May 2010 and April 2013 certifications.  As such, the Veteran's assertions regarding the spelling of his name was taken into consideration when attempting to verify his service.   

The NPRC's verification determination is binding on VA such that VA has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet App. 530, 532 (1992).  The NPRC has certified that the appellant had no qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  The proper course for any claimant, 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). 

The record does not reflect that the appellant had qualifying service.  On that basis, the appellant does not meet the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund.   As such, the Board finds that the preponderance of the evidence is against the appellant's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55  (1990).


ORDER

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs