Citation Nr: 1327550 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 12-32 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The appellant contends that he has recognized service with the Philippine Army during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT 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 one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. § 501(a) (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. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The question currently before the Board is whether the appellant has qualifying service to establish eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund. In Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit held, in the context of Dependency and Indemnity Compensation claims, that where service department certification of a Veteran's active service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department. The Federal Circuit additionally determined that it was a violation of VA's duty to assist not to request service department review of additional or new documents or evidence provided by an appellant concerning a claimant's active service after the initial service department certification. See Capellan, 539 F.3d at 1380-8. The Federal Circuit further held that 'the correct interpretation of the governing statues and regulations requires that a claimant's new evidence be submitted and considered in connection with a request for "verification of service from the service department" pursuant to 38 C.F.R. § 3.203(c).' Id. In this case, the Veteran's supplied information concerning his alleged service was submitted to the National Personnel Records Center (NPRC) for confirmation of that alleged service. The Board finds that the actions taken by the RO in securing confirmation of no qualifying service, based on all submitted information as supplied by the appellant, satisfies these requirements pursuant to 38 C.F.R. § 3.203(c) and Capellan. The record shows that 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. Because qualifying service and how it may be established are governed by law and regulations and are based on the binding determination of the service department's certification, the Board's review is limited to interpreting the pertinent law and regulations. Where, as here, the interpretation of the law is dispositive of the appeal, neither the duty to notify nor the duty to assist provisions of the VCAA apply. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004 (June 23, 2004). Nonetheless, the Board notes that the RO provided the appellant with VCAA/ development notice letters in June 2009 and June 2012. The appellant has also had a meaningful opportunity to participate in the processing of his claim. He has submitted written statements concerning his claimed veteran status, apparent Republic of the Philippines government correspondence, purported Philippine Army certificates and awards, other various certificates addressing the appellant's identity and claimed status as a Philippine veteran. The appellant has not identified any additional pertinent evidence which should have been obtained. In light of the foregoing, the Board concludes that no further notification or development of evidence is required. No useful purpose would be served in remanding this matter for yet more development. Therefore, the appellant will not be prejudiced by the Board's proceeding to adjudicate the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Analysis The appellant contends, in effect, that he has service entitling him to one-time payment from the Filipino Veterans Equity Compensation Fund. However, applicable findings by the NPRC are not subject to dispute, as discussed above, and the claim must accordingly be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Under the American Recovery and Reinvestment Act of 2009, a new one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund." American Recovery and Reinvestment Act of 2009 § 1002, Public Law No. 111-5 (enacted February 17, 2009). 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. 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 is entitled, "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 enactment of the 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(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. 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. The appellant provided detailed information about himself and his alleged service, including date and place of birth, a service number, branch of service, rank, and dates of service entry and separation. The appellant has provided documentary information inclusive of a birth certificate, Philippine military service records, as well as other official documents. Most recently, he has contended that he served with the "USA FEE: Hq & Hq Serv. Co., 104th Inf-Rgt." as well as with what he characterized as a "guerrilla outfit," namely the "81st MPC Co. transferred to the Hq. Co. 106th Division." However, requests were made to the National Personnel Records Center (NPRC), in St. Louis, Missouri, to verify any alleged service, including with the Commonwealth Army of the Philippines, including recognized guerrillas, under the United States Armed Forces. The NPRC considered the appellant's assertions, and sought the appellant's name as listed on official documents, inclusive of alternative names, on the Reconstructed Recognized Guerrilla Roster (RRGR) as maintained at the VARO Manila. Official records were checked for service with the USAFFE, "Hq & Hq Serv. Co 104th Inf Rgt/ 81st METACARPOPHALANGEAL JOINT Co/ Hq Co 106th Div/ Northern Luzon Zone Philippine Constabulary/ 55th MP Co AFP." Certifications from the NPRC obtained in September 2009, November 2009, February 2010, September 2012, and June 2013, all show no such service. This was consistent with a prior NPRC determination in February 2002. Most recently, the Veteran in November 2012 submitted an additional affidavit from friends and neighbors of the Veteran's family. The affidavit provides an alternative spelling of the Veteran's last name, which was considered in the most recent NPRC Certification in June 2013. These NPRC certifications are 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). Any recognition a claimant may have of service by the Philippine Government, although sufficient for entitlement to benefits from that government, is not sufficient for benefits administered by VA. 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. He 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 the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs