Citation Nr: 1329077	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  11-27 053	)	DATE
	)
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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.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Berry, Counsel





INTRODUCTION

This appeal comes to the Board of Veterans' Appeals (Board) from a May 2010 decision.  

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 military 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 FVEC 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 Feb. 17, 2009); 38 C.F.R. § 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Notification and Assistance

Generally, VA is required to meet met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).  In some cases, however, the duties of notice and assistance 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) (notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (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).

In this case, the 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 under the FVEC.  The duties of notice and assistance are 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).

II. Analysis

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 Feb. 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.

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 dated July 26, 1941.  That includes any person who served in military units such as the 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; as well as any person 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 (2009).

The Act directs VA 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.  Pub. L. No. 111-5, 123 Stat. 115 (2009).  Specifically, VA 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, regulatory guidelines have been developed governing the evidentiary requirements for establishing the requisite service for VA benefits purposes.

The guidelines provide that, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a Service Separation Form, 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).  When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c) (2012).

The RO received the appellant's application for the one-time payment from the FVEC Fund in December 2009.  The appellant does not contend that she served in the organized military forces of the Government of the Commonwealth of the Philippines, or in the Philippine Scouts.  Rather, she asserts that she served with the Commonwealth of the Philippines as a recognized guerrilla.  Specifically, the appellant contends that she served in the recognized guerrilla forces as a member of the Women's Auxiliary Service with the 15th Infantry, 11th District, Ilocos Region from August 1942 to November 1945.  

The claims file contains several documents in support of the appellant's claim.  Those documents include: appellant's affidavit of service, a copy of Registry of Birth from the Office of the Local Civil Registrar dated in December 1966, an affidavit of disinterested persons that assert that they served with the Veteran during World War II, letter and pictures of medals she received from the Armed Forces of the Philippines, Certificate of Attendance from the American Legion Auxiliary dated in April 1983 and a photograph with the American Legion.  The evidence listed above, however, does not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as none are an official document of the appropriate United States service department or NPRC.  Accordingly, they 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.  See 38 C.F.R. § 3.203.  

The RO submitted a request to the NPRC for verification in December 2009.  The NPRC 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 in January 2010.  The RO sent a second request to the NPRC for verification in February 2013.  The NPRC responded in March 2013 that no change was warranted in the prior negative certification.  

Significantly, the appellant has not submitted a Certification of Release or Discharge from Active Duty (DD Form 214) or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1) at any time during this appeal.  The NPRC has duly considered the appellant's application for VA benefits and repeatedly certified that she had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas.  The Board notes that this verification is binding on VA such that VA has no authority to change or amend the finding.  See Duro v. Derwinski, 2 Vet App. 530, 532 (1992).  See also Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the United States service department does not verify claimed service, the applicant's only recourse lies with the relevant service department, not VA).  Moreover, 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 foregoing, the Board concludes that the appellant had no qualifying service and, as such, does not meet the requisite legal requirements for obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund.  Accordingly, the appellant's claim for benefits must be denied.


ORDER

Recognition as a Veteran for the purpose of establishing entitlement to a one-time payment from the FVEC Fund is denied.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs