Citation Nr: 1328496 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 11-25 466 ) 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 Fund (FVEC). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The appellant's husband claimed service during World War II. A death certificate is of record showing that the appellant's husband died in December 2009. The appellant claims as his widow. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a June 2010 determination of the VA Regional Office (RO) in Manila, the Republic of the Philippines, that denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund. 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 has certified that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II. CONCLUSION OF LAW The appellant's husband does not have the requisite service that entitles him to a one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish- American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army were called into the service of the United States Armed Forces of the Far East by President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed.Reg. 3825 (Aug. 1, 1941). However, current law provides that the service of certain Filipino veterans does not entitle them to receive full benefits administered by VA. 38 U.S.C.A. § 107 (West 2002). On February 17, 2009, the President signed the American Recovery and Reinvestment Act intended for "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization." See Pub. L. No. 111- 5, 123 Stat. 115 (2009). The legislation included a provision for the creation of the Filipino Veterans Equity Compensation Fund, providing one-time payments to "eligible persons" in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). An "eligible person" is defined as any person who served 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. These included, among others, 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 who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). Additionally, the person must have been discharged or released from such service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009). The Act further directs the Secretary to "administer the provisions of this section in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and shall apply the definitions in section 101 of such title in the administration of such provisions, except to the extent otherwise provided in this section." Id. The Secretary is authorized by statute to prescribe "regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under the laws administered by VA." 38 U.S.C.A. § 501(a)(1) (West 2002). Pursuant to that authority, the Secretary has prescribed regulatory provisions governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. That regulation provides that for the purpose of establishing entitlement to benefits, 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 VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a) (2012). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for ninety days for a line of duty disability. 38 C.F.R. § 3.203(b) (2013). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, the VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c) (2013). The Court has held that the findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has reached the same conclusion. See e.g. Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997) (noting that "[b]ecause the United States Department of the Army refused to certify [the claimant's] alleged service in the Philippine Army, VA properly refused to consider his claim for veterans' benefits based on that service."). In this case, the appellant's husband submitted an application for a one-time payment from the Filipino Veterans Equity Compensation Fund in February 2009. He reported that he was a Recognized Guerilla with K Company 3rd Battalion, 94th Infantry, Leyte Area Command from August 1944 to May 1945. Subsequent to receipt of the claim, the RO contacted the service department and requested verification of the appellant's husband's reported military service in connection with the claim. In its request, the RO included the information as provided by the appellant's husband. In a response received in January 2010, the National Personnel Records Center responded that the appellant's husband 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. A death certificate was received in June 2010 showing that the appellant's husband died in December 2009. An accompanying marriage contract indicated that the appellant had been married to him. The RO sent the surviving spouse a letter dated in June 2010 that the claim for Filipino Veterans Equity Compensation was denied because her husband did not have the requisite military service to establish eligibility therefor. She was also advised of the evidence considered in the denial of the claim. The appellant submitted additional documentation in support of the claim, including affidavits and copies of Philippine Army documents. These included an October 1990 Application for Old Age Pension (Veteran), Commonwealth of the Philippines Army Certificate of Discharge dated May 1945, and an Affidavit for Philippine Army Personnel dated March 1946. Thereafter, the RO once again contacted the service department and requested re-verification of the appellant's husband's reported military service based on the additional evidence received. In its request, the RO included the information provided by the appellant. The National Personnel Records Center responded in October 2010 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. It was additionally noted that the subject individual's name was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by VA RO Manila. The appellant filed a notice of disagreement with VA's determination in December 2010. In support of her claim, she submitted additional documentation that includes: a letter informing her husband that the Philippine Veterans Affairs Office would commence paying Total Administrative pension to all living World War II veterans who were at least 80 years old, a Notice of Annual Meeting of Stockholders of the Philippine Veterans Bank, and a Notice of Approval from the Philippine Veterans Affairs Office that her monthly pension was approved. Subsequently received in January 2011 were affidavits from the appellant's husband's reported former fellow service members, A.T.C., S.B.B., and P.L.T. attesting to their knowledge that the appellant's husband served with them under the same command. The appellant's husband's authenticated enlistment record was also received in January 2011. The RO once again contacted the service department and requested re-verification of the appellant's husband's reported military service based on the additional evidence received. In its request, the RO included the information supplied by the appellant. The National Personnel Records Center responded in June 2011 that the subject individual was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by VA RO Manila and that no change was warranted in the prior negative certification. The service department was contacted again in January 2013 after receipt of additional information. It responded in March 2013 that the subject individual was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by VA RO Manila and that no change was warranted in the prior negative certification. An affidavit was received from A.T.C. in April 2013 stating that he others, including P.L.T. and S.B.B. served with the appellant's husband under the command of Coronel R.K.K, Regimental Commander, that they had each been paid Filipino Veterans Equity Compensation (FVEC), and that the appellant's husband should have been awarded the same. The Board has carefully considered all of the documentation submitted by the appellant but finds that it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service for FVEC purposes. The documents submitted by the appellant were not issued by the service department, nor do they contain the necessary information to establish entitlement to the benefit sought. As such, those documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA, including the one-time payment from the Filipino Veterans Equity Compensation Fund. The only recourse in this instance was to request verification of service by the service department. In this regard, the National Personal Records Center has four times certified that the appellant's husband 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 is bound by this certification. See e.g. Capelin, 539 F.3d at 1375 (noting that "if the United States service department refuses to verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not the VA"). As such, the appellant's husband does not meet the eligibility requirements for FVEC. It is noted that the appellant's husband could be recognized as a Veteran of the Philippine government, and still not have qualifying service for VA benefits. Finally, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist claimants in the development of a claim. In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); see also 38 C.F.R. § 3.159(b)(3)(ii) (2013) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); see also 38 C.F.R. § 3.159(d)(3) (2013) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). This is such a case. The VCAA is therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). The Board regrets that the outcome of this determination could not be more favorable to the appellant. However, as discussed, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits and qualifying service that have not been met in this case. As the service department has certified that her husband did not have the requisite service to qualify him for payment from the Filipino Veterans Equity Compensation Fund, the appeal must be denied. Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs