Citation Nr: 1327219 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 12-00 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the claimant has legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The appellant had no recognized service for VA purposes. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a January 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, concluding the appellant did not have qualifying service to be eligible for the one-time payment from the FVEC 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). FINDING OF FACT The National Personnel Records Center (NPRC) has repeatedly 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 to receive the one-time payment from the FVEC Fund. 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 The Veterans Claims Assistance Act (VCAA) There was a significant change in the law with the enactment of the VCAA in November 2000. The VCAA enhanced VA's duties to notify and assist claimants with claims for VA benefits, upon receipt of a complete or substantially complete application. The VCAA was codified, as amended, at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126, and the implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Here, though, as it is the law, not the facts, that is dispositive of this appeal, the duties to notify and assist imposed by the VCAA are inapplicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The VCAA does not affect matters and has no application when, as here, the disposition of the appeal 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. Thus, the law is dispositive, and basic legal entitlement to the one-time payment from the FVEC Fund is precluded based upon the appellant's lack of qualifying service. Therefore, legal entitlement to the one-time payment from the FVEC Fund must be denied as a matter of law and VA has no duty to notify or assist the appellant in this appeal because no amount of notice or assistance could help him substantiate his claim. In Manning v. Principi, 16 Vet. App. 534, 542 (2002), the United States Court of Appeals for Veterans Claims ("the Court") explained that the VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on facts or development of facts. See also Smith v. Gober, 14 Vet. App. 227 (2000); Sabonis v. Brown, 6 Vet. App. 426 (1994). Nevertheless, a duty to assist letter was sent in May 2011 with a follow-up VCAA notice in March 2013. FVEC Payment The President of the United States signed the American Recovery and Reinvestment Act of 2009 on February 17, 2009, authorizing the release of a one-time, lump-sum payment to eligible World War II Philippine Veterans. These payments are to be made through VA. American Recovery and Reinvestment Act (ARRA) § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). 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. See ARRA § 1002(d), Pub. L. No. 111-5 (enacted February 17, 2009). In this case, the NPRC verified in December 2010 and April 2013 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 Veteran did not submit a DD Form 214 (or date appropriate form), 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). Rather, in support of his claim of entitlement, he instead submitted identification cards; an Application for Old Age Pension from Philippines Veterans Affairs Office; a Passbook from Philippine veterans Bank; a Certification from the Office of the Adjutant General, Armed Forces of the Philippines dated in April 2009; a Form 23, Affidavit for Philippines Army Personnel dated in May 1945; a Republic of the Philippines Ministry of National defense General headquarters, Armed Forces of the Philippines Certification dated in April 1980; and his own assertions that he had qualifying service. The Board has considered these evidentiary submissions, but these documents fail 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. As such, these documents may not be accepted as verification of service for the purpose of determining eligibility for VA benefits, including, here, the one-time payment from the FVEC Fund. The 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 United States Armed Forces. The Board acknowledges the appellant's arguments to the contrary, that he had the requisite service. However, the Board is not free to ignore the certification of the NPRC. This verification is binding on VA such that VA has no authority to change or amend the finding. See Duro v. Derwinski, 2 Vet App. 530, 532 (1992). This department is bound to follow the certifications by the service departments with jurisdiction over United States military records. NPRC has duly considered the appellant's application for VA benefits and, in response, certified that he had no qualifying active military service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, and the Board is bound by this certification. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department refuses to verify the claimed service, the applicant's only recourse lies within the service department, not with VA). Because 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, he may not be considered a Veteran for the purpose of establishing entitlement to the one-time payment from the FVEC Fund. Accordingly, the claim is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). ORDER The claim of legal entitlement to the one-time payment from the FVEC Fund is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs