Citation Nr: 1327212	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  11-23 723A	)	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 (FVEC).

REPRESENTATION

J. Juliano, Counsel

INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 and June 2010 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

In light of the appellant's advanced age, his motion to advance the case on the docket is granted.  Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  See 38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The National Personnel Records Center (NPRC) has twice 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 FVEC are not 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 FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

Generally, VA is required to meet certain duties to notify and assist claimants, including those of the VCAA.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). With regard to cases that are denied as a matter of law, however, the duty to notify and assist provisions need not be considered.  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); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); 38 C.F.R. § 3.159(b)(3)(ii) (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).

In this case, the Board's decision of the issue on appeal is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits and qualifying service under the FVEC.  The duties of notice and assistance are, therefore, inapplicable and need not be considered in this case.

The Board also acknowledges letters submitted by the appellant after the issuance of the June 2011 Statement of the Case (SOC), including letters dated August 9, 2011 and July 24, 2012, which contain arguments and include attachments duplicative of contentions and records previously considered by the RO prior to the issuance of the June 2011 SOC.  The duplicative documents were also of record before verification of service was last obtained in November 2009.  The Board acknowledges that he asserts therein that certain correspondence he received from the RO appeared to have been prepared by subordinates of the drafter, and in that regard, the Board notes that the appellant has not otherwise asserted any particular substantive or procedural defect in such correspondence, to which the presumption of regularity applies.  Finally, the Board acknowledges that he asserts therein that the May 2009 RO decision denying his claim did not take into account the buddy affidavits he submitted in support of his claim, nor a copy of certain correspondence he mailed to an ambassador in July 2009.  In that regard, the Board notes that all of the affidavits submitted by the appellant in support of his claim as well as a copy of the July 2009 correspondence were all taken into account by the RO, as such records are all listed in the June 2011 SOC.  Therefore, the Board finds that a remand for readjudication by the RO is not necessary, and the Board may proceed with a decision in this matter.

II. Analysis

The appellant claims entitlement to a one-time payment for from the FVEC based on alleged service in the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States.  He asserts that from November 1942 to November 1944, he served in D Company, 1st Battalion, 93rd Infantry, 91st Division, Northwest Leyte Guerilla Forces (NWLGF), a recognized guerilla.

Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund."  Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009); 38 C.F.R. § 3.203 (2012).  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. Pub. L. No. 111-5, § 1002(e).

An "eligible person" is generally any person who 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). Pub. L. No. 111-5, § 1002(d).

In support of his claim, the appellant submitted a September 1976 certificate from the Philippine Veterans Affairs Office (PVAO) reflecting that he served with the Northwest Leyte Guerilla Forces (NWLGF), and it was noted that the basis for such was not the Approved Revised Reconstructed Guerilla Roster of 1948, but rather, a prior claim for an educational benefit that was approved back in February 1967.  He also submitted what appears to be a roster of his unit as of November 30, 1942.  The Board also acknowledges other submissions made by the appellant in support of his claim, including but not limited to his own affidavits, affidavits from his commanding officer and several buddies in service, his Philippine old age pension records, several newspaper articles, and certain records relating to his membership in Philippine veterans organizations.  He has not, however, submitted a DD Form 214, a Certificate of Release or Discharge from Active Duty, or an original Certificate of Discharge, which generally do not require service department verification.  See 38 C.F.R. § 3.203(a) (2012).  Because the above affidavits, articles, and Philippine records do not constitute official documents of the appropriate United States service department or NPRC, they do not satisfy the requirements of 38 C.F.R. § 3.203(a) as acceptable proof of service in the United States Armed Forces, and verification of service with the appropriate service department or NPRC is required.  See 38 C.F.R. § 3.203(c) (2012).

In this case, the RO sent two separate requests to NPRC in September 2007 and October 2009 to verify the appellant's service in the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States, and the RO noted that the appellant reported that he served in D Company, 1st Battalion, 93rd Infantry, 91st Division, Northwest Leyte Guerilla Forces (NWLGF).  NPRC replied in October 2007 and November 2009 that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States.  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).  Also, as noted by the RO in the October 2009 request to NPRC, the appellant is not listed in the Reconstructed Recognized Guerilla Roster (RRGR) maintained at the RO in Manila.  While the Board acknowledges the appellant's assertion that his name is not included on the list maintained at NPRC because he was still with comrades in the mountains when the list was being compiled, and that there was a quota that did not allow for inclusion of all qualifying servicemen, unfortunately, the Board emphasizes again that the finding of NPRC is binding on VA.

Accordingly, as the above-discussed statements and affidavits, newspaper articles, letters from the appellant, PVAO records, and other non-U.S. department records may not be accepted by the Board as verification of service in this case, and in light of the negative responses from NPRC in an attempt to verify service, no qualifying service is has been shown and, therefore, entitlement to a one-time payment from the FVEC has not been established.


ORDER

Entitlement to one-time payment from the FVEC is denied.



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs