Citation Nr: 1326292 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 12-00 846 ) 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 Fund. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The appellant alleges that he had recognized guerilla service with the U.S. Armed Forces, Far East (USAFFE), in the Philippines during World War II. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 decision by a Department of Veterans Affairs (VA) Regional Office (RO). 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 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 does not have recognized active military service for the purpose of obtaining the one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101(2), 107(b) (West 2002 & Supp. 2012), American Recovery and Reinvestment Act of 2009 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1(d), 3.6, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notice requirements of VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The VCAA does not affect matters on appeal when the issue is limited to statutory or regulatory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (interpreting that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). Nevertheless, the appellant was provided notice in an April 2013 letter, and also submitted documents to support his claim during the course of the appeal. There is no dispute as to the facts involved, and this is a matter where the law and not the facts are controlling. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Pursuant to the holding in Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008), the RO in the context of the instant appeal has sought and obtained further input from the NPRC which has reiterated that the appellant is without the requisite military service as to render him an eligible person under the American Recovery and Reinvestment Act for a one-time payment from the Filipino Equity Compensation Fund. Thus, there is no possibility that any additional notice or development would aid in the substantiation of his claim. 38 U.S.C.A. §§ 5103, 5103A. The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Under the American Recovery and Reinvestment Act, enacted February 17, 2009, 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 (Act) § 1002, Pub. L. No. 111-5. Payments for eligible persons are either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Section 1002 of the Act addresses payments to eligible persons who served in the United States Armed Forces in the Far East (USAFFE) during World War II, providing in § 1002(c)(1) 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 (February 17, 2009, through February 16, 2010), 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. An eligible person under Section 1002(d) of the Act 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. The RO attempted to verify whether the appellant had participated in qualifying service for the benefit sought. The NPRC reported in February 2010, July 2011, and May 2013 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. The appellant submitted an August 1942 USAFFE letter promoting him to First Lieutenant in the Army of the AGNO. He also submitted a February 1945 letter he wrote on USAFFE Liaison Guerrilla Army Forces, 3rd Pangasinan Regiment letterhead requesting a transfer. A March 1946 Pay and Allowance Account reports for the 3rd Pangasinan Regiment that is in his name is of record. A certification from the Headquarters, American Forces, Western Pacific, Recovered Personnel Division, Adjudication Branch, Public Affairs Section, states that the Veteran was assigned temporary duty with the Public Affairs Adjudication Branch, Recovered Personnel Division, pending permanent assignment. Also of record is an undated Officers Pay and Data Card in the appellant's name. Documentation from the Commonwealth of the Philippines Headquarters indicates that the appellant was released from active service in the Philippine Army in June 1946. Also of record is a March 1947 statement of pay and allowances from the Philippine military. Other service personnel records indicate that the appellant served from August 1945 to April 1946. A March 1947 Official Certification from the Headquarters Army of the Philippines states that the appellant was on the approved guerilla roster of the 3rd Pangasinan Regiment. A March 1947 affidavit from a major and executive officer of the 3rd Pangasinan Regiment in the Guerilla Forces states that the appellant was inducted in the Guerilla Forces, Headquarters Battalion, 3rd Pangasinan Regiment, with the rank of First Lieutenant. Another affiant stated in April 1947 that the appellant was in the 3rd Pangasinan Regiment and that they performed missions together. The appellant was active in espionage and sabotage during the Japanese occupation. An August 1947 affidavit states that the appellant was inducted into the Guerilla Forces in September 1942 and assigned to the 3rd Pangasinan Regiment. A February 1948 redetermination letter from the headquarters of the Philippines Ryukyus Command regards readjudication of the appellant's claim for arrears in pay. In March 1948 another affiant wrote that the appellant served with a guerilla unit. An April 1948 decision from the Philippine government granted payment to the appellant for a disability incurred in the line of duty. The documents from the Philippine government fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, because they are not official documents of the appropriate United States service department, but rather are documents generated by the Philippine government. As such, those documents may not be accepted by the RO or 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. As noted, the 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. 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). The proper course for the appellant, if he 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). Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits from the United States, administered by VA. The submitted oaths are also not sufficient for benefits from the United States, 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 service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The appellant may not, therefore, be considered an eligible person for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs