Citation Nr: 1329069	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  10-46 984	)	DATE
	)
	)

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


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Bayani B. Labayog, One Time Representative


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel



INTRODUCTION

This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision of the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO). 

The Board has not only reviewed the physical claims file but also the file on the "Virtual VA" system to ensure a total review of the evidence.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The service department 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 appellant is not eligible for a one-time payment from the FVEC Fund.  38 U.S.C.A. §§ 101, 107, 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant alleges that he is a honorably discharged Philippine Veteran of World War II who served in the United States Armed Forces, served in the recognized guerilla from August 1943 to February 1946 and in the Philippine theater.  Such assertions are noted in a February 2009 Statement in Support of the Claim VA Form 21-4138 and November 2010 substantive appeal, via a VA Form 9.

Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine Veterans to be paid from the FVEC 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.

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.

Section 1002(j)(2) also provides that VA will administer its provisions in a manner consistent with VA law except to the extent otherwise provided in the statute.

The RO submitted the pertinent and correct information to the National Personnel Records Center (NPRC) for verification of the appellant's service.  The NPRC certified on five separate occasions, twice in March 2013, September 2010, September 2009, and April 2009, 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.  These verifications of no qualifying service 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).

The appellant did not submit a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the United States Armed Forces for purposes of establishing entitlement to VA benefits in accordance with 38 C.F.R. § 3.203(a)(1). 

Instead, the appellant submitted:  (1) a February 1946 Affidavit for Philippine Army Personnel; (2) an October 1971 certification of service in the Philippine Army from August 1943 to February 1946 and April 1950 to date; and (3) a July 1991 Application for Old Age Pension to the Philippine Veterans Affairs Office noting dates of discharge in February 1946 and February 1973 and a Veteran during World War II - Philippine Army, United States Armed Forces in the Far East (WWII-PA, USAFFE), and Armed Forces of the Philippines (AFP) Service.

The Board finds these documents submitted by the appellant do not 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 or NPRC.  Accordingly, 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 FVEC Fund.   

The proper course for the appellant, who 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.  This department 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.  He may not, therefore, be considered a veteran for the purpose of establishing entitlement to the one-time payment from the FVEC Fund.  Since the law is dispositive in this matter, the claim must be denied because of the absence of legal merit or entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The VCAA does not apply to the appellant's claim seeking compensation from the FVEC Fund.  As the Board has explained above, the claim must be denied as a matter of law because the undisputed facts, when applied to the controlling law and regulations, render him ineligible for the claimed benefit.  The Veterans Claims Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated.  The Court has recognized that enactment of the VCAA does not affect matters on appeal from the Board when the questions are limited to statutory interpretation.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (1999); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). 

In addition, VA's General Counsel has held that there is no duty to notify a claimant where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, and no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit.  See VAOPGCPREC 5-2004. 

In the instant case, there is no legal entitlement to the benefit claimed (FVEC Fund) because the appellant did not have recognized qualifying active military service.  Because there is no reasonable possibility that further notice or assistance would aid in substantiating the claim, any VCAA notice or assistance deficiencies are rendered moot.  See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim).


ORDER

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



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs