Citation Nr: 1331020	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  13-08 402	)	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 Fund (FVEC).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Juliano, Counsel

INTRODUCTION

This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2009 and July 2010 decisions of 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 on six occasions 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 are not met.  38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

Generally, VA is required to meet certain duties to notify and assist veterans, including those of the VCAA.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012).  With regard to cases that are denied as a matter of law, however, the duty to notify and assist provisions need not be considered.  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); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); 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).  

In this case, the Board's decision of the issue on appeal 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.

II.  Analysis

The Appellant claims entitlement to a one-time payment for from the FVEC based on alleged service in the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States between November 1941 and May 1946.  See Claim, February 2009.

Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund."  Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009); 38 C.F.R. § 3.203 (2013).  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.  Pub. L. No. 111-5, § 1002(e).

An "eligible person" is generally 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 section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538).  Pub. L. No. 111-5, § 1002(d).

In support of his claim herein as well as in support of prior claims, the Appellant submitted certificates dated in April 2010 from the Philippine Veterans Affairs Office relating to his Old Age Pension, April 2004 from the Armed Forces of the Philippines Adjutant General, July 1985 from the Philippine Veterans Affairs Office regarding his name being certified to the PVB, and April 1981 from the General Headquarters, Armed Forces of the Philippines.  The Board also recognizes several statements and affidavits made by the Appellant in support of his claim, photocopies of medals he submitted, and a March 1958 record from the United States Philippine Islands Forces regarding service (apparently at that time) in the Victory Unit.  He did not submit a DD Form 214, a Certificate of Release or Discharge from Active Duty, or an original Certificate of Discharge, which generally do not require service department verification.  See 38 C.F.R. § 3.203(a) (2012).  Because none of the above records submitted by the Appellant constitute official documents of the appropriate United States service department or NPRC, they do not satisfy the requirements of 38 C.F.R. § 3.203(a) as acceptable proof of service in the United States Armed Forces.  Therefore, verification of service with the appropriate service department or NPRC is required.  See 38 C.F.R. § 3.203(c) (2012).

In this case, the RO sent five separate requests to NPRC in October 1981 (in connection with the Appellant's prior claim for service connection for service-connected disability), May 2010, February 2012, May 2012, and May 2013 to verify the Appellant's service in the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States.  Copies of the above-noted certifications, and various statements and forms submitted by the Veteran in support of his claim, were sent with the requests for verification to NPRC.  NPRC replied five times in March 1982, June 2010, March 2012, June 2012, and June 2013 that the Appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the U.S. Armed Forces.  In addition, a December 2003 negative response from the NPRC also indicates that the Veteran had submitted a request for verification directly to NPRC.  These six verifications from NPRC are 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 Board notes that the Appellant has not submitted any additional evidence of his service since the last May 2013 request was made to NPRC.  Also, it was noted by the RO in several of these requests that the Appellant is not listed in the Reconstructed Recognized Guerilla Roster (RRGR) maintained at the RO in Manila.

Accordingly, as the above-discussed documents submitted by the Appellant may not be accepted by the Board as verification of service in this case, and in light of the six negative responses from NPRC in an attempt to verify service, the Board finds that no qualifying service has been shown and, therefore, entitlement to a one-time payment from the FVEC has not been established.  The Board adds that in Soria v. Brown, the Court of Appeals for the Federal Circuit specifically held that a Philippines Department of Defense certification was not sufficient to establish qualifying service (to establish veterans benefits), because the law requires verification from a U.S. service department.  See Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).

The Board acknowledges the Appellant's sincere belief that he is entitled to a one-time payment from the FVEC based on his unverified service in the USAFFE.  In that regard, the Board emphasizes that while it is very sympathetic to the Appellant's claim, the Board is bound by the statutes, regulations, and case law pertaining to claims for FVEC benefits, and the existing law does not provide for granting a claim absent verification of qualifying service by either a U.S. service department or NPRC.

In summary, because no qualifying service has been shown by a U.S. service department or NPRC, entitlement to a one-time payment from the FVEC has not been established.

ORDER

Entitlement to one-time payment from the FVEC is denied.

 

____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs