Citation Nr: 1329807 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 10-30 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant is a Veteran for the purpose of establishing entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant contends that he had recognized Philippine guerrilla service, in the service of the United States Armed Forces during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decisional letter by the Manila Regional Office (RO). Because Veteran status of the person seeking a VA benefit is a threshold requirement for establishing entitlement to such benefit that is the matter before the Board. This matter was previously before the Board in April 2013 when it was remanded for additional development. 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 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 a not a veteran, and is not eligible to receive a one-time payment from the Filipino Veterans Equity Compensation 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 February 17, 2009); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. However, the United States Court of Appeals for Veterans Claims (Court) has held that when the law as mandated by statute, and not the evidence, is dispositive of the claim, the above provisions are not applicable. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002). The Board has reviewed all the evidence in the claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As noted, the appellant seeks entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. Under the American Recovery and Reinvestment Act, a new one-time benefit is provided for certain Philippine veterans to be paid from the Filipino Veterans Equity Compensation Fund. See American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Payments for eligible persons will be in the amount of $9,000.00 for non-United States citizens and $15,000.00 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 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 that Act. 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(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 own provisions in a manner consistent with VA law except to the extent otherwise provided in the statute. As noted, the critical question here is whether the appellant has the requisite military service. For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, 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 VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). Where 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). The Court has held that the findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also Venturella v. Gober, 10 Vet. App. 340 (1997). The appellant filed his claim in February 2009 and did not submit any document that meets the first requirement of 38 C.F.R. § 3.203(a); he 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. He has submitted several documents generated by various Philippine government entities and lay statements from individuals indicating that he served with "HQ & HQ Serv. Co., 66th Inf. PA (E-24)," "HQ & HQ Serv. Co., 66th Inf. PA (F-24)," "HQ & HQ Bn. Serv. Co., 66th Inf. USAFIPNL," "Combat Co./Heavy Weapon, HQ & HQ Bn., 66th Inf. USAFIPNL." The appellant has also used various permutations of his name, including "[redacted]," "[redacted]" and "[redacted]". The evidence also includes two dates of birth for the appellant (i.e., March [redacted], 1927, and March [redacted], 1929). He has also identified a commanding officer (i.e., "Major [redacted]"). The RO sought service department certification of the alleged service. In September 2009, January 2013, May 2013, and June 2013 responses, the National Personnel Records Center (NPRC) certified: "Subject has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces." The May 2013 certification included certification under the above noted alternative names, the differing dates of birth, all identified units provided above, and the identified commanding officer. However, the certification did not include a service number. In light of the absence of a service number, the June 2013 certification included all of the information of the May 2013 certification, with the addition of a service number. These certifications are binding on VA; VA has no authority to change or amend the finding. Duro, 2 Vet. App. at 532. 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. The appellant has not submitted any additional information suggesting that a recertification of service must be sought. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994); see also Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008). The Board notes that in February 2013 correspondence, the appellant indicated that his proper date of birth is March [redacted], 1929, and that the March [redacted], 1927 date of birth was used for him to qualify for enlistment in the military. In this regard, the Board notes that the May and June 2013 certifications included both dates of birth. Hence, recertification on this basis is not necessary. Finally, the Board notes that in July 2010, the appellant submitted lay statements from individuals that alleged that they served with the appellant in the same unit. As noted above, the certifications of the NPRC are binding on VA, and VA no authority to change or amend its findings. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997) (stating that Philippine veterans are not eligible for veterans' benefits unless a United States service department documents or certifies their service). To the extent the appellant has submitted statements from individuals alleging that they served with the appellant in the same unit, the Board notes that such has no bearing on whether the appellant had requisite military service. The Board is bound by the governing law and regulations. See 38 U.S.C.A. § 7104(c); 38 C.F.R. § 20.101. If a change of service department certification is what the appellant seeks, his remedy lies with the service department and not with VA. See Sarmiento, 7 Vet. App. at 85; Soria, 118 F.3d at 749. The record does not reflect that the appellant had qualifying service. On that basis, he does not meet the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation 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). ORDER Basic eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs