Citation Nr: 1326134	
Decision Date: 08/16/13    Archive Date: 08/26/13

DOCKET NO.  12-08 770	)	DATE
	)
	)

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


THE ISSUE

Whether the appellant has legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) fund.  


WITNESSES AT HEARING ON APPEAL

Appellant and his grandson


ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel





INTRODUCTION

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).

This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision in August 2010 of a Department of Veterans Affairs (VA) Regional Office (RO) that determined that the appellant had no legal entitlement to a one-time payment from the FVEC fund.  In January 2013, the appellant provided testimony before the undersigned at a Travel Board hearing in Manila, the Republic of the Philippines; a transcript of that hearing is of record.


FINDINGS 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 United States Armed Forces.  


CONCLUSION OF LAW

The criteria for eligibility to 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. 2009); 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

Duty to Notify and Assist

The Board has considered whether the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002), is applicable to this claim.  Because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004).  Accordingly, there is no prejudice toward the appellant in proceeding with the adjudication of his claim and no further need to discuss VCAA duties.  

Analysis

The American Recovery and Reinvestment Act authorized a one-time benefit 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).  

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 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 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 (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.  

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, the VA shall request verification of service from a service department.  38 C.F.R. § 3.203(c).

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto.  See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  Thus, if the United States service department refuses to verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA.  Soria, 118 F. 3d at 749.  In short, under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies their service.  Soria, 118 F. 3d at 749.  

The appellant claims that he is entitled to a one-time payment from the FVEC fund.  He essentially alleges that he had recognized guerilla service beginning in February 1945.  

An August 2011 certification from the Armed Forces of the Philippines, General Headquarters, Office of the Adjutant General, noted that the appellant served with B Company, San Antonio Sector Squadron C.  It was reported that the appellant joined in September 1942 and was released in July 1945.  The appellant's military status was listed as guerilla.  

In February 2010, the appellant filed his claim for legal entitlement to a one-time payment from the FVEC fund.  He reported that he had recognized guerilla service from February 1945 to July 1947.  The appellant listed the names of his mother and father, as well as the name of his spouse.  He indicated that his date of birth was October [redacted], 1918, and that his place of birth was San Antonio, Zambales, Philippines.  

In May 2010, the RO requested verification of the appellant's service from the National Personnel Records Center (NPRC).  In a July 2010 response to the request for verification of the appellant's service, the NPRC reported 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.  

Following receipt of the appellant's notice of disagreement, in December 2011 the RO again requested verification of the appellant's service from the NPRC.  In a January 2012 response to the December 2011 request for verification of the appellant's service, the NPRC again reported 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.  

Following receipt of the appellant's substantive appeal, his Travel Board hearing testimony, and additional documents provided by the Veteran at his hearing, including an affidavit signed by two officers of the San Antonio Sector Guerillas attesting to the appellant's service in support of United States forces, in May 2013 the RO again requested verification of the appellant's service from the NPRC.  In a June 2013 response to the May 2013 request for verification of the appellant's service, the NPRC again reported that no change was warranted in the prior negative certification.  See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008).

The appellant does not legally qualify for a one-time payment from the FVEC fund.  The NPRC has specifically certified, on three occasions, 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 August 2011 certification from the Armed Forces of the Philippines, General Headquarters, Office of the Adjutant General, submitted by the appellant, fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as the certification is not an official document of the appropriate United States service department, and is without the official seal.  The document, therefore, is not acceptable as verification of the appellant's service for the purpose of receiving VA benefits.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  

The appellant has also submitted copies of documents related to his service, and an affidavit attesting to his service in the Guerilla movement.  These documents do not establish qualifying service for the purpose of legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund.

The service department has thrice determined 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.  Where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  





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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