Citation Nr: 1326887	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  11-28 484	)	DATE
	)
	)

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

John Kitlas, Counsel


INTRODUCTION

This matter is before the Board of Veterans' Appeals (Board) on appeal from a determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the Appellant's claim for one-time payment from the Filipino Veterans Equity Compensation Fund.


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

In December 2009, November 2010, March 2013, and May 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 Armed Forces of the United States


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. 2012); 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

The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

For the reasons detailed below, however, the Board finds that this appeal must be denied as a matter of law.  In VAOPGCPREC 5-2004 (July 23, 2004) VA's Office of General Counsel held that the VCAA does not require either notice or assistance when the claim cannot be substantiated under the law or based on the application of the law to undisputed facts.  Similarly, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  Therefore, no further discussion of the VCAA is warranted in this case.  In any event, VCAA notice was provided in February 2013, and the claim was readjudicated in June 2013. 

For reasons that will be explained in more detail below, the Board finds that there is no legal entitlement to the benefits claimed.  Thus, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim.  Accordingly, the Board finds that no further discussion of the VCAA is required because any deficiencies of notice or assistance are 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). 

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

Under 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 February 17, 2009) (Act).  Payments for eligible persons will be in the amount of $9,000.00 for non-United States citizens and $15,000.00 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 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. 

VA is authorized by statute to prescribe regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits" under the laws administered by VA.  38 U.S.C.A. 
§ 501(a)(1).  Pursuant to that authority, the Secretary has prescribed regulatory provisions governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. 

That regulation provides that for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a service separation form, 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, (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).

The Appellant asserts he satisfies the criteria for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.  He maintains that he had recognized guerrilla service during World War II.  He has provided various documents in support of his claim to include, but is not limited to, a joint affidavit from two individuals attesting to such service; certifications from the Armed Forces of the Philippines Adjutant General; copies of identification cards for the Appellant from the Veterans Federation of the Philippines and Philippine Veterans Affairs Office (PVAO); documents pertaining to old age pension from PVAO; and a Certificate of Discharge from the Philippine Army.  He also submitted various statements of his own detailing the circumstances of his purported service.

The RO submitted the Appellant's pertinent information, included his various names, to the NPRC who certified in December 2009 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.  In November 2010, March 2013, and May 2013, the NPRC reported that no change was warranted in this certification.

Findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the United States Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997).  Where the United States service department does not certify alleged service, VA must refuse to consider a claim for veterans' benefits based on that service.  Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997). 

The Board has carefully considered the documentation submitted by the Appellant, but notes that it fails to satisfy the requirements as acceptable proof of service.  38 C.F.R. § 3.203.  The documents submitted by the Appellant were not issued by the United States service department, nor do they contain the necessary information to establish entitlement to the benefit sought.  Therefore, those documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the Filipino Veterans Equity Compensation Fund.  The Board is bound by the United States service department's certification.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (If the service department does not verify the claimed service, the only recourse lies with the service department, not VA).  Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits administered by VA.

As the service department has certified that the Appellant did not have the requisite service to qualify him for the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund, and the claim must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (Where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). 


ORDER

Basic eligibility for 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