Citation Nr: 1328484	
Decision Date: 09/06/13    Archive Date: 09/16/13

DOCKET NO.  11-06 249	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, 
the Republic of the Philippines


THE ISSUE

Legal entitlement to a one-time payment from the Filipino 
Veterans Equity Compensation (FVEC) Fund.


ATTORNEY FOR THE BOARD

T. S. Kelly, Counsel 


INTRODUCTION

The appellant had service in the Philippine Army during the 
Second World War.  She also alleges qualifying service for 
legal entitlement to a one-time payment from the FVEC fund. 

This matter comes before the Board of Veterans' Appeals  
(Board) on appeal from a January 2010 rating decision of a 
Regional Office (RO) of the Department of Veterans Affairs 
(VA) in Manila, the Republic of the Philippines. 

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 certified 
that the appellant had no requisite qualifying service, to 
include as a member of the Philippine Commonwealth Army or 
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 a one-time payment from 
the Filipino Veterans Equity Compensation 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

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced 
VA's duties 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, 3.326(a) (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.  The record shows that the NPRC reported 
that the appellant had no qualifying 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 the 
service department's certification is binding, 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. 

Nonetheless, the Board notes that in a February 2013 letter 
the RO provided the appellant with notice that informed her 
of the evidence needed to substantiate her claim.  The 
letter told her what evidence she was responsible for 
obtaining and what evidence VA would undertake to obtain.  
The letter further told her to submit relevant evidence in 
her possession.  The February 2013 letter also provided the 
appellant with notice as to the disability rating and 
effective date elements of the claim.

Although the notice letter was not sent before the initial 
RO decision in this matter, the Board finds that this error 
was not prejudicial to the appellant because the actions 
taken by VA after providing the notice have essentially 
cured the error in the timing of notice.  Not only has the 
appellant been afforded a meaningful opportunity to 
participate effectively in the processing of her claim and 
been given ample time to respond, the RO has also 
readjudicated the case by way of a supplemental statement of 
the case issued after the notice was provided.  See Prickett 
v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of 
a fully compliant VCAA notification followed by 
readjudication of the claim, such as a statement of the case 
or supplemental statement of the case, is sufficient to cure 
a timing defect).  Furthermore, the appellant has presented 
detailed argument which shows she is aware of what is needed 
to substantiate the claim. 

The appellant has also had a meaningful opportunity to 
participate in the processing of the claim.  The appellant 
has submitted numerous affidavits and service records in 
support of the claim.  The appellant has not identified or 
submitted any additional pertinent evidence which should be 
considered. 

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.  The Board will proceed with 
appellate review. 

Eligibility for FVEC One-Time Payment

The appellant seeks a one-time payment from the Filipino 
Veterans Equity Compensation Fund.  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.  American 
Recovery and Reinvestment Act § 1002, Pub. L. 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."  Nothing in the 
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 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 (New) Philippine Scout under section 14 of the Armed 
Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ), 
Public Law 190, 79th Congress; and (2) was discharged or 
released from service described in paragraph (1) under 
conditions other than dishonorable.

Under 38 C.F.R. § 3.203(a) (2012), 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.  A copy of an original 
document is acceptable if the copy is issued by the service 
department or if the copy was issued by a public custodian 
of records who certifies that it is a true and exact copy of 
the document in the custodian's custody; and (2) the 
document contains needed information as to length, time and 
character of service; and (3) in the opinion of VA, the 
document is genuine and the information contained in it is 
accurate.

When the claimant does not submit evidence of service or the 
evidence submitted does not meet the requirements of 
38 C.F.R. § 3.203(a), VA is required to request verification 
of service from the service department.  See 38 C.F.R. 
§ 3.203(c).  Under 38 C.F.R. §§ 3.40 and 3.41, certification 
of service is a prerogative of the service department, and 
the VA has no authority to amend or change their decision.  
The United States Court of Appeals for Veterans Claims 
(Court) has held that findings by a United States service 
department verifying or denying a person's service are 
binding and conclusive upon VA.  See Spence v. West, 13 Vet. 
App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 
341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); 
Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). 

In this case, the appellant submitted documents along with 
her claim, and those records were forwarded to the National 
Personnel Records Center (NPRC) for verification.  In 
November 2009, the NPRC certified 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 Armed Forces. 

The appellant submitted additional documents in February 
2010, along with her notice of disagreement (NOD).  The 
appellant submitted a certification of service from the 
Veterans Federation of the Philippines, Philippine National 
Volunteer Army, that she was a member of the Philippine 
National Army of the United States of America-VAUS unit- as 
a private first class attached to the Women Auxiliary 
Service Co., 3rd Battalion, 4th Infantry under the Overall 
Commander of the Unit Gen. L. Monilla.  It was indicated 
that she had been inducted in January 1942 and discharged in 
May 1945.  Also added to the record was a photocopy of a 
document entitled "Commonwealth of the Philippines 
Philippine National Volunteer Army of the United States of 
America, VAUSA" indicating that the appellant was inducted 
in January 1942 and separated in May 1945.  The name of the 
unit to which she was attached was noted to be the Volunteer 
Army of the United States of America, VAUSA.  Also added to 
the record were "Affidavits of Comrades" from J. B, T. N., 
A. L., M. B. and J. B., C. B., and H. S. A., indicating that 
the appellant was part of the above noted unit from January 
1942 to May 1945, and a roster of the WAS Service Company 
which contained the appellant's name. 

In November 2010, NPRC again verified 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 Armed Forces.  In March 2013, NPRC was again 
requested to re-verify service.  The affidavits noted above 
were attached along with a roster of veterans who were part 
of WAS Service Company and certification from VFP for 
reference when making their determination.  In April 2013, 
NPRC indicated that no change was warranted in prior 
negative certification and that the documents referenced to 
in the request had no bearing on the determination made by 
NPRC.  

Upon review of the evidentiary record, the Board notes that 
the appellant has not submitted a DD Form 214, 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) .  While the appellant did submit 
various records in support of her claim, 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, but rather documents from the Philippine 
government.  As such, these documents may not be accepted as 
verification of service for the purpose of determining 
eligibility for VA benefits, including the one-time payment 
from the Filipino Veterans Equity Compensation Fund. 

The NPRC has certified on multiple occasions that the 
appellant had no qualifying service as a member of the 
Philippine Commonwealth Army, including the recognized 
guerrillas, in the service of the United States Armed 
Forces.  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).  VA is bound by 
service department determinations regarding what constitutes 
service in the Armed Forces of the United States. 

The proper course for the appellant, if she 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).  Recognition of service by 
the Philippine Government, although sufficient for 
entitlement to benefits from that government, is not 
sufficient for benefits administered by VA.  The Department 
of Veterans Affairs is bound to follow the certifications by 
the service departments with jurisdiction over United States 
military records.  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.  She 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. 

Because the disposition of this claim is based on the law, 
and not on the facts of the case, the claim must be denied 
based on a lack of entitlement under the law.  


Sabonis v. Brown, 6 Vet. App. 426 (1994).  Moreover, because 
the law, rather than the facts of the case, is controlling, 
the provisions of 38 U.S.C.A. § 5107(b) are not for 
application.


ORDER

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



____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs