Citation Nr: 1328489	
Decision Date: 09/06/13    Archive Date: 09/16/13

DOCKET NO.  10-40 773A	)	DATE
	)
	)

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


THE ISSUE

Legal entitlement to one-time payment from the Filipino 
Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Counsel




INTRODUCTION

Certification by the service department shows that the 
appellant had no service as a member of the Philippine 
Commonwealth Army, including the recognized guerrillas, in 
the service of the U.S. Armed Forces.

This matter comes to the Board of Veterans' Appeals (Board) 
from a March 2010 administrative decision of the Department 
of Veterans Affairs (VA) Regional Office (RO) in Manila, the 
Republic of the Philippines, which found that the appellant 
did not have qualifying military service to be eligible for 
a one-time payment from the Filipino Veterans Equity 
Compensation Fund.

In opening, the Board notes that in January 2012, via VA 
Form 21-22 (Appointment of Veterans Service Organization as 
Claimant's Representative), the appellant appointed the 
National Veterans Legal Services Program (NVLSP) as his 
representative in this matter.  However, in January 2013, 
the NVLSP withdrew their representation.  

In a letter dated July 30, 2013, the appellant was advised 
that the NVLSP had revoked its power of attorney and that he 
could appoint a new representative, if he so desired.  The 
letter advised that if VA did not hear from the appellant in 
this regard within 30 days, it would assume he desired to 
proceed unrepresented.  VA did not receive any communication 
from the appellant within this 30 day period regarding 
representation.  Accordingly, the matter will be adjudicated 
with the appellant unrepresented.  

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 Service Department verified that the appellant did not 
have service as a member of the Philippine Commonwealth 
Army, including the recognized guerrillas, in the service of 
the United States Armed Forces.


CONCLUSION OF LAW

The appellant does not have recognized active military 
service for the purpose of eligibility for VA benefits, 
including the one-time payment from the Filipino Veterans 
Equity Compensation Fund.  38 U.S.C.A. § 501(a) (West 2002); 
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 appellant asserts that he should be awarded status as a 
veteran, and that he is entitled to a the one-time payment 
from the Filipino Veterans Equity Compensation Fund. He 
asserts that during World War II he served with The 
Volunteer Army of the United States of America (VAUSA), a 
guerilla unit, as well as the "55th Inf. Reg't, 52nd Div., 5th 
Military district" from sometime in 1942, to May 30, 1945.  
He asserts that this service included service alongside U.S. 
Military forces, and as a recognized guerilla, and that he 
is entitled to the benefit sought.  He has submitted several 
personal affidavits and argument in support of his 
assertions.

Under the recently enacted American Recovery and 
Reinvestment Act, 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 § 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 ... ."  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 addresses 
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 the enactment 
of this 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.

Eligibility for VA benefits is governed by statutory and 
regulatory law that defines an individual's legal status as 
a veteran of active military, naval, or air service.  38 
U.S.C.A. §§ 101(2), 101(24) (West 2002); 38 C.F.R. §§ 3.1, 
3.6 (2012).

The term "veteran" means a person who served in the active 
military, naval, or air service and who was discharged or 
released under conditions other than dishonorable.  38 
C.F.R. § 3.1(d).
Service in the Philippine Scouts and in the organized 
military forces of the Government of the Commonwealth of the 
Philippines, including recognized guerrilla service, is 
recognized service for certain VA purposes, as authorized by 
38 U.S.C.A. § 107 (West 2002). 38 C.F.R. § 3.40 (2012).

Service department certified recognized guerrilla service 
and unrecognized guerrilla service under a recognized 
commissioned officer, only if the person was a former member 
of the United States Armed Forces (including the Philippine 
Scouts), or the Commonwealth Army, prior to July 1, 1946, is 
included for compensation benefits, but not for pension 
benefits. 38 C.F.R. § 3.40(b), (c), and (d).  Active service 
will be the period certified by the service department.  38 
C.F.R. § 3.9 (2013).

Title 38 of the United States Code authorizes the Secretary 
of Veterans Affairs (Secretary) to prescribe the nature of 
proof necessary to establish entitlement to veterans' 
benefits. See 38 U.S.C.A. § 501(a)(1).  Under that 
authority, the Secretary has promulgated, inter alia, 38 
C.F.R. §§ 3.41 and 3.203(a), (c), to govern the conditions 
under which the VA may extend veterans' benefits based upon 
service in the Philippine Commonwealth Army.  Those 
regulations require that service in the Philippine 
Commonwealth Army (and thus status as a veteran for VA 
benefits purposes) be proven with either official 
documentation issued by a United States service department 
or verification of the claimed service by such a department.  
See 38 C.F.R. §§ 3.41 (authorizing veteran status for 
Philippine veterans "from the date certified by the Armed 
Forces [of the United States]"); 3.203(a) (requiring service 
department documentation of service where available); 
3.203(c) (requiring service department verification of 
service where documentation is not available).

Only service department records can establish if and when a 
person was serving on qualifying active service.  Venturella 
v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 
Vet. App. 232, 237 (1994).

It has been held that a person seeking VA benefits must 
first establish by a preponderance of the evidence that the 
service member upon whose service such benefits are 
predicated has attained the status of veteran.  D'Amico v. 
West, 12 Vet. App. 264 (1999) rev'd on other grounds, 209 
F.3d 1322 (2000); Holmes v. Brown, 10 Vet. App. 38, 40 
(1997).  For the purpose of establishing entitlement to VA 
benefits, VA may accept evidence of service submitted by a 
claimant, such as a Department of Defense (DD) Form 214, 
Certificate of Release or Discharge from Active Duty, or 
original Certificate of Discharge, without verification from 
the appropriate U.S. service department under the following 
conditions: (1) the evidence is a document issued by the 
United States service department; (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.  38 
C.F.R. § 3.203(a) (2012).  

In November 2009, the RO requested that the National 
Personnel Records Center (NPRC) attempt to verify if the 
appellant had qualifying service as a member of the 
Philippine Commonwealth Army, including the recognized 
guerrillas in the service of the United States Armed Forces.  
The RO submitted this request listing the appellant's branch 
of service as "guerrilla" and his unit of assignment as 
"VAUSA."  In December 2009, the NPRC responded negatively, 
stating that the "[s]ubject has no service as a member of 
the Philippine Commonwealth Army, including the recognized 
guerrillas in the service of the United States Armed 
Forces."

In September 2012, and after receiving several personal 
affidavits, the RO again requested that the NPRC attempt to 
verify if the appellant had qualifying service as a member 
of the Philippine Commonwealth Army, including the 
recognized guerrillas in the service of the United States 
Armed Forces.  The RO submitted this request listing the 
appellant's branch of service as "guerrilla" and his unit of 
assignment as "Volunteer Army of the US; K Co 4th Bn 55th Inf 
Regt Div 5th Military District."  The RO also provided the 
affidavits to the NPRC.  In November 2012, the NPRC again 
responded negatively, stating that the "[s]ubject has 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 finds that the claim must be denied.  The 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 United States Armed 
Forces.  This lack of 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); Soria v. 
Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Spencer v West, 
13 Vet. App. 376 (2000).  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).  The documentation 
that he has submitted fails to satisfy the requirements of 
38 C.F.R. § 3.203 as acceptable proof of service, as it does 
not include official documents of the appropriate United 
States Service Department.  As such, these documents may not 
be accepted by the Board 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 appellant may not, therefore, be 
considered a "veteran" for the purpose of establishing 
entitlement to VA benefits including the one-time payment 
from the Filipino Veterans Equity Compensation Fund.  
Accordingly, the claim must be denied.

VA's duties to assist and notify have been considered in 
this case.  However, as it is the law, and not the facts, 
that are dispositive of the appeal, the duties to notify and 
assist imposed by the Veterans Claims Assistance Act (VCAA) 
are not applicable to this claim.  See Mason v. Principi, 16 
Vet. App. 129, 132 (2002).  The enactment of the VCAA does 
not affect matters on appeal from the Board when the 
question 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.

Nevertheless, it is noted that the RO sent the Veteran a 
letter in September 2012, which included information 
concerning how to substantiate a claim for Filipino Veterans 
Equity Compensation Benefits and the allocation of 
responsibilities between himself and VA.  The claim was 
thereafter readjudicated.  Accordingly, there results no 
prejudice to the appellant in adjudicating this claim.


ORDER

One-time payment from the Filipino Veterans Equity 
Compensation Fund is denied.



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




 Department of Veterans Affairs