Citation Nr: 1325517	
Decision Date: 08/12/13    Archive Date: 08/16/13

DOCKET NO.  10-36 659	)	DATE
	)
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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.



ATTORNEY FOR THE BOARD

N. Holtz, Associate Counsel



INTRODUCTION

The appellant claims service during World War II.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines.  

The matter came before the Board in October 2012, at which time the Board remanded the appeal in an effort to obtain additional information concerning the appellant's date and place of birth.  The appellant failed to respond to the RO's November 2012 letter requesting the information the Board sought.

The Board has reviewed the Virtual VA electronic claims file associated with this appeal; it contains no additional information or evidence pertinent to the claim.  

In October 2011, the appellant withdrew his request for a Board hearing.  38 C.F.R. § 20.704 (2012).

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 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 is not eligible for the one-time payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009); 38 C.F.R. §§ 3.1, 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

As it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable to this claim.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  The enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations.

Legal Criteria and Analysis

The appellant seeks entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC Fund).  This issue involves the critical legal criteria of requiring evidence establishing that the appellant is a "veteran" for VA purposes.  This determination rests on the nature of his military service.

The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).

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 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 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 "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."  Id.

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(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 the enactment of this 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.  Id.

In this case, the appellant contends that he served in World War II before July 1, 1946, in the 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, including among organized guerrilla forces under authority of the United States Army.  

In November 2009, the RO attempted to verify that the appellant had the service required to be eligible for the benefit sought on appeal by submitting information to the National Personnel Records Center (NPRC), including the appellant's name, date of birth, place of birth, branch of service, and dates of service using information provided by the appellant in his March 2009 claim and copies a postal identity card and a Republic of the Philippines Office of Senior Citizen Affairs identity card.  

The NPRC certified in January 2010 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.  See 38 C.F.R. § 3.203(c).

In April 2010, the appellant submitted a Certificate of Honorable Discharge from the Commonwealth of the Philippines Philippine Army and an Application for Old Age Pension as a veteran of the army of the Republic of the Philippines.  In August 2010, he submitted an Affidavit for Philippine Army Personnel (Form 23).

In November and December 2010, using information contained in the aforementioned documents VA received in April and August of 2010, the RO attempted to re-verify that he had the service required to be eligible for the benefit sought on appeal by submitting information to the NPRC.  The NPRC certified in January and February 2012 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.  See id.

Without verification of service from the NPRC, the evidence submitted by the appellant fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department.  He has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1).  

The Board notes that in all correspondence to, and responses from, the NPRC, all parties identified the appellant's date of birth as occurring in September 1923, and his place of birth as Victoria, Tarlac, Philippines.  As noted in the October 2012 remand, that date of birth, which is found in such purportedly official documents such as the appellant's postal service identity card and Application for Old Age Pension as a veteran of the army of the Republic of the Philippines, is in conflict with his Form 23, which identifies an October 1924 date of birth.  Further, his Certificate of Honorable Discharge from the Commonwealth of the Philippines Philippine Army indicates that as of January 31, 1943, the Veteran was 21 years old; that age would be in conflict with a date of birth occurring in September 1923 or October 1924.

In the October 2012 remand, the Board offered the appellant the opportunity to clarify the record and provide VA with his actual date of birth.  The appellant failed to respond to the November 2012 letter that the RO mailed to him requesting that information.  The appellant, thus, has failed to assist VA in developing his claim, despite the fact that the evidence sought (i.e., the date of his birth) is evidence that should be in his possession.  The Court of Appeals for Veterans Claims has explained that VA's duty to assist is a two-way street.  If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  VA has made every reasonable effort to obtain all records relevant to the appellant's claim, and has fully complied with the Board's October 2012 remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).  

Without some further suggestion that the October 1924 date of birth identified on the appellant's Form 23 is his actual date of birth, there is no additional duty on VA to attempt to verify service based on a date that may or may not be the appellant's actual date of birth, especially as that potential date of birth is different from the date of birth identified in all other submissions by the appellant.  See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (holding that VA's statutory duty to assist is not a license for a "fishing expedition").

The Board also observes that the February and March 2012 Supplemental Statements of the Case indicate a different place of birth than that identified by the appellant.  Despite that discrepancy, it is clear that the NPRC only considered the correct place of birth, as claimed by the appellant, and thus no further development is needed in that regard.

In sum, although the appellant asserts that he had recognized service, the NPRC certified on three occasions that the he had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  This verification 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).  Recognition of service by the Philippine Government is not sufficient for benefits administered by VA.  This department is bound to follow the certifications by the service departments with jurisdiction over United States military records. 

Based upon the record in this case, the appellant had no qualifying service. He therefore does meet the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund.


ORDER

Eligibility for the one-time payment from the Filipino Veterans Equity Compensation Fund is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs