Citation Nr: 1329554	
Decision Date: 09/16/13    Archive Date: 09/20/13

DOCKET NO.  11-05 633	)	DATE
	)
	)

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


THE ISSUE

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


ATTORNEY FOR THE BOARD

C. Hancock, Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a January 2010 decisional letter from 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in Manila, the Republic of the Philippines.

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 Armed Forces of the United 
States.


CONCLUSION OF LAW

The criteria for obtaining a one-time payment from the FVEC 
have not been met.  38 U.S.C.A. §§ 107 Note, 501(a) (West 
2002 & Supp. 2012); 38 C.F.R. § 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

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, 5107, 5126 (West 2002 & 
Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 
(2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 
(2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 
(2006).

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).

This is such a case.  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).

A new one-time benefit is provided for certain Philippine 
veterans to be paid from the "Filipino Veterans Equity 
Compensation Fund."  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.  38 
U.S.C.A. § 107 Note (Supp. 2012).

For eligible persons who accept a payment from the FVEC, 
such payment "shall constitute a complete release of any 
claim against the United States by reason of [such] service 
. . . ."  However, nothing in the 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."  Id.

The law addresses Payments to Eligible Persons Who Served in 
the United States Armed Forces in the Far East during World 
War II.  The pertinent section 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; and (2) was discharged or released from service 
described in paragraph (1) under conditions other than 
dishonorable.  38 U.S.C.A. § 107 Note (Supp. 2012).

In February 2010, the appellant submitted a copy of an 
affidavit of military service, which indicates service as a 
USAFFE (U.S. Armed Forces, Far East) guerilla in the 
Commonwealth of the Philippines, Philippine Army.  Also 
obtained from the appellant in February 2010 is a photocopy 
of an enlistment record; this purports to also show service 
in the USAFFE.  However, neither of these documents satisfy 
the requirements of 38 C.F.R. § 3.203 as acceptable proof of 
service, as they are not an official document of the 
appropriate United States service department or the National 
Personnel Records Center (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.

The appellant did not submit 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).

The RO submitted the pertinent information to the NPRC for 
verification. The NPRC certified twice, in November 2009 and 
December 2010, 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 prior to July 1, 1946.  The NPRC has certified 
that the appellant had no qualifying service.  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).

During the course of his appeal, the appellant submitted 
several documents which purport to indicate his birthdate.  
These records include birthdates listed as being June 24, 
1924; October 26, 1924; and March 12, 1925.  In December 
2102 and April 2013 responses which noted the various 
birthdates, the NPRC certified that no change was warranted 
in the prior certification.  

The proper course for any claimant 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).

Based upon the record in this case, the appellant had no 
qualifying service in order to meet the basic eligibility 
criteria for establishing entitlement and a one-time payment 
from the FVEC is not warranted.


ORDER

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



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




 Department of Veterans Affairs