Citation Nr: 1328001	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  11-20 991	)	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 (FVEC) Fund.



ATTORNEY FOR THE BOARD

K. Neilson, Counsel





INTRODUCTION

The appellant contends that he served in the Philippine Commonwealth Army, to include recognized guerrilla service, in the service of the United States Armed Forces, between 1941 and 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 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).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING 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 service requirements for eligibility for a one-time payment from the FVEC Fund have not been met.  38 U.S.C.A. § 5101(a) (West 2002 & West Supp. 2013); American Recovery and Reinvestment Act of 2009, § 1002, Pub. L. No. 111-5; 38 C.F.R. § 3.203 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  As will be discussed in further detail below, the Board finds that under the facts of the present case, the law is dispositive of the issue.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Where, as here, the law is dispositive in a matter, the notice provisions of the VCAA have no effect.  See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive); Smith v. Gober, 14 Vet. App. 227 (2000) (VCAA has no effect on appeal limited to interpretation of law) aff'd, 281 F.3d 1384 (Fed. Cir. 2002).  VA also has no further duty to assist the appellant in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid him in substantiating his claim.  See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Wensch v. Principi, 15 Vet. App. 362, 368 (2001); cf. Valiao v. Principi, 17 Vet. App. 229, 231-32 (2003) ("[w]here the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, . . . [t]he failure to carry out . . . required development under those circumstances is nonprejudicial error").  Moreover, because the issue is not medical in nature, there was no duty to provide a medical examination or obtain a medical opinion.

II.  Analysis

Pursuant to the American Recovery and Reinvestment Act of 2009, Congress established the "Filipino Veterans Equity Compensation Fund" and authorized VA to make one-time payments from the fund to eligible persons who submitted a claim within the one-year period beginning on the date of enactment.  Pub.L. No. 111-5, § 1002, 123 Stat. 115.  The act defined the term "eligible person" as 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.  Id. at § 1002(d).

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown.  Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); 38 C.F.R. § 3.203(c).  If the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA.  Soria, supra.  Thus, in cases where verification of the claimed service is required, absent documentation or certification of such service by the relevant service department, a claimant would not be eligible for VA benefits based on such service.  Soria, supra; 38 C.F.R. § 3.203.

Under 38 C.F.R. § 3.203(a), VA may accept evidence of service submitted by a claimant, such as a DD Form 214, 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 Department of Veterans Affairs the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a).

In the instant case, the appellant seeks entitlement to a one-time payment from the FVEC Fund.  In support of his claim, he asserted that he had service from December 1941 to April 1946 with the recognized guerilla forces of the Government of the Commonwealth of the Philippines in the service of the United States Armed Forces and listed his unit as "'C" Coll Co. 81st MED Bn 81st Division."  A review of the Reconstructed Guerilla Roster maintained by the RO failed to reveal the appellant's name.  The RO thus requested that the NPRC complete an AGUZ Form 632 and furnish all extracts of Form 23 executed prior to and subsequent to June 30, 1946.  The request listed the appellant's name.

In a response dated in January 2010, the NPRC indicated 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.  Thereafter, the RO requested reverification of service due to variation in names under which the appellant may have served and additional unit assignments.  The subsequent request listed the units as "'C" Coll Co. 81st MED Bn 81st' Div/K Co 3rd Bn 62nd Inf Reg" and "'M' Co 3rd Bn 120th Inf 108th Div 10th MD."  The NPRC again responded by indicating 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 June 2010, the RO denied entitlement to a one-time payment from the FVEC Fund upon finding that the appellant did not have the requisite military service to render him eligible for such benefits.  The appellant disagreed with the decision and submitted photocopies of his certificate of discharge, certificate of military service, and his AGO Form 23 (Affidavit for Philippine Army Personnel).  The matter was again referred to the NPRC, which request included the appellant's AGO Form 23 and other submitted documents.  In an April 2013 response, the NPRC found that no change in the prior negative service certification was warranted based on the additional information provided.  In this regard the Board notes that the RO's request listed one of the appellant's unit assignments as "K" Co 3" Bn 63" Inf 6 Inf Div PA APO 159, instead of "K" Co 3" Bn 62" Inf 6 Inf Div PA APO 159 as indicated in the appellant's AGO Form 23.  The Board notes, however, that the request asked the NPRC to verify the appellant's service based on the information contained in the enclosed AGO Form 23, among other documents.  Accordingly, the Board finds that the listing of "Bn 63'" as opposed to "Bn 62'" does not rise to the level of remandable error because the correct unit assignment was provided to the NPRC via the appellant's AGO Form 23 and it was requested that the search be made based on the information contained in the enclosed documents.  

In consideration of the evidence of record, the Board concludes that the appellant is not eligible for a one-time payment from the FVEC Fund because the evidence fails to establish that he had the requisite qualifying military service.  Notably, none of the documents submitted by the appellant satisfies the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate service department.  As such, those documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for a one-time payment from the FVEC Fund.  Further, all information submitted by the appellant has been referred to the NPRC for review and the NPRC has declined to certify the claimed service on three separate occasions.  Although the appellant contends that he did indeed have the requisite service to be eligible for a one-time payment from the FVEC Fund, the lack of certification from the NPRC is binding on VA.  See Duro, supra.  

Accordingly, because NPRC failed to certify that the appellant had the requisite service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces, the appellant has not achieved veteran status for purposes of entitlement to payment from the FVEC Fund and the claim must be denied as a matter of law.  See Sabonis, 6 Vet. App. at 430.

ORDER

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



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs