Citation Nr: 1325426	
Decision Date: 08/12/13    Archive Date: 08/16/13

DOCKET NO.  11-03 805	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. B. Yantz, Counsel





INTRODUCTION

The appellant is a Veteran who served on active duty in the regular Army of the United States from April 1945 to June 1946.  He claims prior qualifying service with the United States Armed Forces (in the Regular Philippine Scouts) from March 1941 to April 1945.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 administrative decision of the Manila, the Republic of the Philippines Department of Veterans Affairs (VA) Regional Office (RO).

The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered.

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) has verified that the Veteran 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; his service in the Philippine Scouts was not under Section 14 of the Armed Forces Voluntary Act of 1945.


CONCLUSION OF LAW

The criteria for establishing legal entitlement to a one-time payment from the FVEC Fund are not met.  38 U.S.C.A. §§ 101, 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1, 3.203 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

The VCAA need not be considered because the issue presented is solely one of statutory interpretation (and the claim by this claimant is barred as a matter of law).  See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law).

A review of the record found no information suggesting that a recertification of the Veteran's service or nonservice is necessary.  VA's duty to assist is met.

Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided.

Under the American Recovery and Reinvestment Act, a new one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund."  See American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 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. 

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 this act "prohibit[s] 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 served (1) 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 the 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) in the Philippine Scouts under section 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.  Further, section 1002(i) provides that the service of a person as described in subsection (d) is recognized as active military service in the Armed Forces for purposes of, and to the extent provided in, this section. 

For purposes of establishing entitlement to VA benefits, 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 under 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 VA, 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 does not meet the requirements of this section, VA shall request verification of service from a service department.  38 C.F.R. § 3.203(c).

After reviewing the record, the Board finds that the Veteran is not entitled to a one-time payment from the FVEC Fund because he did not serve 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, and was not a "new" Philippine Scout.  See Pub. L. 111-5, § 1002(d).

As is noted above (and it is not in dispute) the Veteran served in the Army of the United States from April 1945 to June 1946, and had 1 year, 2 months, and 14 days of prior service in the Philippine Scouts (a component of the U.S. Armed Forces in the Philippines).  As his service from April 1945 to June 1946 was U.S. Army service (and not service in the military forces of the Philippines in the service of the U.S. Armed Forces), and he enrolled in the Philippine Scouts prior to enactment of Section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (in Oct 1945) he does not meet the criteria for either category of persons eligible for the one-time payment from the FVEC Fund.  

The Veteran claims that he is entitled to a one-time payment from the FVEC Fund based on his military service (from March 1941 to April 1945) prior to his enlistment in the Army of the United States.  However, the record shows that such service was as a Regular Philippine Scout (a component of the U.S. Armed Forces in the Philippines).  He has not submitted any document that would establish otherwise.  He has not submitted any documents that meet the first requirement of 38 C.F.R. § 3.203(a).  He has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the U.S. Armed Forces showing service in the military forces of the Philippines in the service of the U.S. Armed Forces in the Philippines.  Consequently, VA sought service department certification as to whether the Veteran had any such service.   In April 2013, the NPRC certified he did not.  

As the Veteran does not meet the threshold requirement of establishing he is an eligible person for receipt of a one-time payment from the FVEC Fund, the law is dispositive, and entitlement to such payment must be denied.  

The Board observes that Section 2002 (a) of Public Law 111-5 clearly explains that the FVEC Fund was established to compensate Filipino Veterans whose service was not recognized as entitling to full benefits payable to Veterans.  That is not the situation here, as the Veteran who is the appellant in this case has established entitlement to full wartime Veterans' benefits, and was awarded VA pension benefits prior to his awards of VA compensation.  


ORDER

Legal entitlement to a one-time payment from the FVEC Fund is denied.


____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs