Citation Nr: 1329405 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 11-00 378 ) 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 (FVEC) Fund. ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION Please note that 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). This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The record reflects that the appellant previously filed a claim for service connection which was denied by the RO on the basis of no qualifying service. Thereafter, the FVEC Fund and entitlement to compensation thereunder was established on February 17, 2009. American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 1002, 123 Stat. 115. The particular benefit the appellant currently seeks is solely entitlement to a one-time payment from the FVEC Fund. Accordingly, the current claim is an original claim. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the sole document in such file reveals that it is duplicative of the evidence in the paper claims file. FINDING OF FACT The National Personnel Records Center (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 Armed Forces of the United States. CONCLUSION OF LAW The appellant does not have recognized active military service for the purpose of obtaining 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 of 2009 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the American Recovery and Reinvestment Act of 2009, 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 of 2009 § 1002, Public Law 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 is entitled "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 enactment of the 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. In this case, the appellant had previously provided information concerning his service, which has been forwarded to the service department for verification. This information includes a certificate of discharge from the Philippine Army dated in May 1946, a June 1952 verification slip from the Philippine Veterans Board, a July 1965 certification from the Philippine Veterans Administration, an August 1965 letter from the Philippine Veterans Administration, a copy of an AGNR2 dated in August 1970, and a January 1990 certification from the Philippine Veterans Affairs Office. The appellant also submitted an August 2005 affidavit in support of a claim for benefits. Based on the information submitted by the appellant, the RO in January 1989 requested verification of his claimed service. In October 1989, the NPRC reported 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 2005, a similar report was received from the service department. The RO had requested verification of service, including with "M Co 3rd Bn 23rd Inf Regt." In August 2010, a similar report was received from the service department. The RO had requested verification of service, including guerrilla service with "'L' Co 3rd Bn 66th Inf USAFIP NL." In February 2012, a similar report was received from the service department. The RO had again requested verification of service, including guerilla service with "121st Inf USA FIP NL/3rd Bn 23rd Inf Regt PA USAFIP NL/M Co 3rd Bn 23rd Inf PA/M 121st Inf USAFFE/L Co 3rd Bn 66th Inf PA USAFIP NL/66TH Inf PA USAFIP PA. In May 2012 the service department reiterated that no change was warranted in the prior negative determination. The RO had asked that the service department re-verify service, to include guerrilla service with "'M' Co. 3rd Bn 23rd Inf Regt, 2nd Inf Div/'L' Co, 121st Inf/66th Inf/6th Army/121st Inf, 1st Bn, 2nd Bn, 3rd Bn." 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). Instead, documents provided show that the appellant had military service during the period from February 1943 to May 1946 and is a veteran of the Philippine government forces. Despite the notation that the appellant was a "guerrilla" in the July 1965 notification from the Philippine Veterans Administration letter, there is no indication that he had recognized guerrilla service for VA purposes. Indeed, all of the documents submitted by the appellant 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, the 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 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 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). The proper course for the appellant, if he 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. He 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. Finally, the Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty 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); 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 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 (June 23, 2004). Nonetheless, the Board notes that the RO advised the appellant of what the evidence must show to establish entitlement to the Filipino Veterans Equity Compensation Pension Benefits in a January 2012 notice letter. Also, the RO provided the appellant with a copy of the its decision, as well as October 2010 Statement of the Case (SOC), and the February 2013 Supplemental SOC (SSOC), which included a discussion of the facts of the claim, the laws and regulations pertaining to eligibility for benefits under the Filipino Veterans Equity Compensation Fund and verification of military service, notification of the basis of the decision, and a summary of the evidence considered to reach the decision. The appellant has also had a meaningful opportunity to participate in the processing of his claim. In addition to the information he provided when he filed his claim in March 2009, he has submitted copies of documents reflecting his service and veteran status with the Philippine government. 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. It is noted that after the February 2013 supplemental statement of the case issued, the Veteran submitted a statement and copies of documents issued by the Philippine Veterans Administration dated in July 1965, a Philippines Veterans Board verification slip dated in June 1952, an Armed Forces of the Phillipines certification dated in August 1970 and a Phillipines Veterans Affairs Office certification dated in January 1990, all of which were already of record. Accordingly, neither additional verification of service nor a supplemental statement of the case is required. ORDER Legal entitlement to the 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