Citation Nr: 1329508 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-39 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from an administrative determination dated in January 2010 by the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claim for a one-time payment from the FEVC Fund. The appellant appealed this decision to the Board. In his September 2010 VA Form 9, Substantive Appeal, and in an October 2011 typewritten statement, the appellant requested a Board hearing be held at the RO. In October 2012 correspondence, the RO notified the Veteran that his Board hearing was scheduled for a date in February 2013. The Veteran failed to appear for this hearing. As the Veteran has not requested that the Board hearing be rescheduled, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.702 (2012). Subsequently, the Board remanded this claim for further development in June 2013. 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 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 criteria for eligibility to a one-time payment from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2009); 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 Veterans Claims Assistance Act of 2000 (VCAA) The Board has considered whether the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002), is applicable to this claim. Because the claim at issue is being denied as a matter of law, the notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004). VA also has no further duty to assist the appellant in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid him in substantiating his claim. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Wensch v. Principi, 15 Vet. App. 362, 368 (2001); cf. Valiao v. Principi, 17 Vet. App. 229, 231-32 (2003) ("[w]here the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, . . . [t]he failure to carry out . . . required development under those circumstances is nonprejudicial error"). Moreover, because the issue is not medical in nature, there was no duty to provide a medical examination or obtain a medical opinion. Analysis Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). The appellant claims that he is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund, based on World War II service as a Recognized Guerrilla. For eligible persons who accept a payment from the FVEC Fund, the payment shall constitute a complete release of any claim against the United States by reason of that service. However, nothing in the act prohibits 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 the Act. Id. For payments to eligible persons who served in the United States Armed Forces in the Far East during World War II, VA 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 the Act, submitted a claim to VA for benefits under the Act. The application for the claim shall contain the information and evidence VA requires. Id. An eligible person is any person who 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ); and was discharged or released from service under conditions other than dishonorable. Id. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012), Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies with the relevant service department, not with VA. Soria, 118 F.3d at 747. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203 (2012); Soria, 118 F.3d at 747. In a March 2009 claim, the appellant provided his identifying information and contended that he was eligible for a one-time payment from the FVEC Fund as a result of service in C Company, Squadron C, San Antonio guerrillas, from November 1942 until June 1946. Pursuant to the Board's June 2013 remand, the appellant was asked to submit a letter from a service buddy which the appellant had previously referred to, but which was not of record. The appellant submitted nothing further. During the course of this appeal, on several occasions, the RO requested verification from NPRC of service using information provided by the appellant. The RO also supplied the NPRC with copies of the relevant records submitted by the appellant. In October 2009, July 2010, and April 2012, the NPRC responded 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. Consequently, the RO determined that the appellant did not have the requisite service to establish eligibility for payment from the FVEC Fund and, thus, denied his claim. During the course of his appeal, in his VA Form 9, Substantive Appeal in September 2010, the appellant pointed out that the Office of the Adjutant General of the Armed Forces of the Philippines had certified his participation in C Company, Squadron C of the San Antonio guerrillas from January 1945 to September 1945 and that from 1941 to 1946 the Armed Forces of the Philippines was under the control of the Armed Forces of the United States of America. Review of the documentation and lay evidence of record shows that none of the submitted documentation and lay evidence qualifies as acceptable proof of service. 38 C.F.R. § 3.203 (2012). That evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought. Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the FVEC Fund. NPRC has duly considered the appellant's application for VA benefits and certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. The Board is bound by that certification. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA). The Board concludes that the appellant does not meet the requisite legal requirements for obtaining a one-time payment from the FVEC Fund. Therefore, his claim for benefits must be denied. As the service department has certified that the appellant did not have the requisite service to qualify him for payment from the FVEC Fund, the appeal must be denied. Where, as here, the law is dispositive, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). In reaching this conclusion, the Board remains sympathetic to the appellant and does not question the sincerity of his belief that he is entitled to VA benefits, specifically in the form of payment from the FVEC Fund. Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of the law. 38 U.S.C.A. § 7104 (West 2002 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs