Citation Nr: 1330432 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 12-01 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Eligibility for legal entitlement to a onetime payment from the Filipino Veterans Equity Compensation Fund (FVEC Fund). REPRESENTATION Appellant represented by: Dante N. Nunez, Agent ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (Board) from a September 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The appellant is not shown to have had active military, naval, or air service, and is not an individual or a member of a group considered to have performed active military, naval, or air service. CONCLUSION OF LAW The appellant does not have status as a veteran for purposes of his claim for a one-time payment from the FVEC Fund, and therefore does not meet the requirements of basic eligibility for these VA benefits. 38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In order to be eligible for benefits administered by the VA, the evidence must establish that the individual seeking benefits is a veteran. The term "veteran" is defined in 38 U.S.C.A. § 101(2) as a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 107(a) provides that service 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, will not be deemed to have been active military, naval, or air service except for specified benefits including disability compensation benefits authorized by chapter 11, title 38, United States Code. 38 U.S.C.A. § 107(a). Under 38 C.F.R. § 3.40, certain service with the Commonwealth Army of the Philippines, with the Philippine Scouts, and guerilla service is included for VA benefits purposes. These include service of persons enlisted under section 14, Public Law 190, 79th Congress (Act of October 6, 1945). Under 38 C.F.R. § 3.203(a), the 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. A copy of an original document is acceptable if the copy is issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; and (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. When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a), VA is required to request verification of service from the service department. See 38 C.F.R. § 3.203(c). Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and the VA has no authority to amend or change their decision. The Court has held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon the VA. See Spence v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Under the American Recovery and Reinvestment Act, a new one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund. See American Recovery and Reinvestment Act § 1002, Pub. L. 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 FVEC 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 (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) of the law also provides that VA will administer its provisions in a manner consistent with VA law including the definitions in 38 U.S.C.A. § 101 except to the extent otherwise provided in the statute. The above summaries of the law and regulations as to what service constitutes active service for purposes of establishing veteran status reflect that, in order to qualify for compensation under the FVEC Fund, a claimant must meet requirements that are included in the requirements under the law and regulations in effect prior to passage of this law. Thus, in order to show entitlement to a one-time payment from the FVEC Fund, a claimant must satisfy the criteria required for establishing basic eligibility for legal entitlement to VA benefits. In connection with his claim, the appellant submitted a copy of a certification from the Commonwealth of the Philippines, Philippine Army, showing that he enlisted in October 1942 and was discharged in March 1946; he served as a first lieutenant. He also submitted a statement dated in March 1946 stating that he was honorably demobilized, effective December 1945, as a first lieutenant from "A" Company, 51st Infantry Rangers. He also submitted a certification from the Republic of the Philippines Records Management and Archives Office that the registry of births for 1921 is not on file, but that he was alleged to have been born in May 1921. He further provided a statement from the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office, dated December 1993, which indicates that he is a veteran of World War II/Philippine Revolution and served with "ECLGA" as a first lieutenant. In January 2011, the appellant submitted a copy of an Attachment Order from the Headquarters Luzon Area Command, dated October 1945; a July 1974 Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office certification that he is a veteran of World War II; an April 1949 mobilization order; and a Headquarters of the Army of the Philippines Official Certification of recognition as a member of the roster of approved guerilla of the 1st Battalion, GST, ECLGA, effective April 1945. He also submitted a November 1945 certification from Headquarters of AFPAG Processing Team G showing that he was an officer of "A" Company, 51st Infantry, ECLGA; a December 1945 certification that he is a member of the General Service Troops Regiment; and a December 1945 Commonwealth of the Philippines, Army Headquarters that the Company "A" of the 51st Infantry, ECLGA is a part of a recognized roster and attached to 2nd Battalion, 343 Infantry. Based on these submissions, the RO requested verification of service from the National Personnel Records Center (NPRC). In December 2009, September 2010, and April 2013, the NPRC reported that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. In light of the above, the statements, copies of orders, and multiple certifications submitted by the appellant fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as these are not official documents of the appropriate United States service department, and are without the official seal. Although the statutes and regulations do not identify the NPRC as the sole entity to represent the "service department" referred to in the regulations, he has not identified any other entity, such as an individual service department, that could provide a response different than that of the NPRC. Thus, although "Philippine claimants are not limited solely to NPRC's verification as a means of proving veteran status, as they may also submit official evidence from the individual U.S. service department that verifies their service," the appellant has not done so here. Palor v. Nicholson, 21 Vet. App. 325, 330 (2007). None of the documents submitted by the appellant were issued by a service department. The documents therefore are not acceptable as verification of service for the purpose of receiving VA benefits. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Additionally, in this case, the NPRC has determined that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Veteran status is a prerequisite to entitlement to payment from the FVEC Fund. Moreover, the NPRC's findings of a lack of qualifying service are binding and conclusive upon the Board. Spence, 13 Vet. App. at 380; Venturella, 11 Vet. App. at 341; Cahall, 7 Vet. App. at 237; Duro, 2 Vet. App. at 532. Therefore, the appellant's claim for entitlement to a one-time payment from the FVEC Fund must be denied the claim must be denied based upon a lack of entitlement under the law. Where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Veterans Claims Court held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006), which VA also has a duty to assist a claimant with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). Regarding the appellant's claim for payment from the FVEC fund, where the law, and not the underlying facts or development of the facts are dispositive in a matter, the duty to notify and assist can have no effect on the appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive). Indeed, that is the case here. As the law and not the facts are dispositive, no further VCAA duty to assist or duty to notify are necessary. Nonetheless, the Board adds that general due process concerns have been satisfied in connection with this appeal. See 38 C.F.R. § 3.103 (2013). The appellant has been accorded ample opportunity to present evidence and argument in support of his appeal. Therefore, further discussion of the VCAA is not required. See Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). ORDER A one-time payment from the FVEC Fund is denied. ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs