Citation Nr: 1331618 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 11-24 061 ) 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 (FVEC) Fund. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant and C. M. ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from a July 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the appellant's claim for a one-time payment from the FVEC Fund. In March 2013, the appellant testified before the undersigned Veterans Law Judge at a hearing at the RO (Videoconference). A hearing transcript has been associated with the claims file. The record was held open for an additional 90 days, at the appellant's request, to allow for the submission of evidence. In June 2013, the appellant requested an additional 60 days to submit evidence. The undersigned Veterans Law Judge granted the appellant's request for an extension to time in July 2013. In August 2013, subsequent to the issuance of the July 2012 supplemental statement of the case (SSOC), the appellant submitted additional evidence pertinent to the claim on appeal. During the March 2013 hearing, the appellant's representative waived consideration of any additional evidence submitted. See 38 C.F.R. § 20.1304 (2012). 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 has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces during World War II. CONCLUSION OF LAW The appellant does not have the requisite service to entitle him to payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 5107 (West 2002 & 2012); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board observes that the provisions of the law regarding notice and assistance with development have no effect on an appeal where, as here, the law, and not the underlying facts or development of the facts, is dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). See also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). The appellant, in his March 2013 hearing testimony, written statements and other documents of record, contends that he had recognized guerrilla service in the Philippine Commonwealth Army during World War II as a United States citizen. As such, he asserts that he is entitled to a one-time payment from the FVEC Fund. By way of history, the Board notes that the Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that the majority of those served in the above units did not have qualifying active service for the purpose of receiving VA benefits. 38 U.S.C.A. § 107. The particular benefit claimed in the instant case originated on February 17, 2009, when President Barack H. Obama signed the American Recovery and Reinvestment Act to promote "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization." See Pub. L. No. 111-5, 123 Stat. 115 (2009). That legislation established the FVEC Fund, which is charged with providing one-time payments to 'eligible persons' in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). 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 to VA a claim for benefits under the Act. The application for the claim shall contain the information and evidence VA requires. Id. § 1002(c)(1). If an eligible person who has filed a timely claim for benefits under Act dies before payment is made, the payment shall be made instead to the surviving spouse, if any, of the eligible person. Id. § 1002(c)(2). 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 a 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 such service under conditions other than dishonorable. Id. § 1002(d). 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). See 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 within the relevant service department; not with VA. [Emphasis added.] 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; Soria, supra. In his January 2008 application for compensation, the appellant asserted that he had served as a recognized guerilla with the 121st Infantry from April 1942 to November 1945. In support of his claim, the appellant submitted an April 1972 Pledge from the Walter Cushing Organization which indicated that the appellant had been inducted into that organization as well as an April 1972 Oath of Office from that organization. A February 2007 Certification from the Armed Forces of the Philippines which stated that the appellant had been inducted in October 1944, that he retired in 1975 and that he had received Veteran's benefits and an March 1993 Application for Old Age Pension from the Republic of the Philippines were also submitted in support of his claim. Thereafter, the RO contacted the service department and requested verification of the appellant's purported service. However, April 2008 and June 2010 responses from the National Personnel Records Center (NPRC) indicated that the appellant had not accrued any qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States. 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. In September 2010, the appellant submitted a certificate from the Commonwealth of the Philippines which indicated that he was honorably discharged in March 1950. He also submitted a Statement of Service from the Hukbong Katihan NG Pilipinas indicated that the appellant had been enlisted from October 1944 to February 1945 and in August 1945. He also submitted a copy of his Social Security and Medicare cards. Thereafter, in October 2010, the RO contacted the service department and requested verification of the appellant's alleged service due to these newly received documents. However, a November 2010 response from the NPRC indicated that the appellant had not accrued any qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States. In June 2011, the appellant submitted a Certification from the Adjutant General's Service detailing the appellant's service history in the Philippine Army, indicating that he was inducted in October 1944 and retired in September 1975, and that he was "not carried" in the Reconstructed Guerilla Roster (RRGR) of 1948. The RO contacted the service department and requested verification of the appellant's purported service due to these newly received documents in October 2011. However, a January 2012 response from the NPRC indicated that the appellant had not accrued any qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States. In July 2011, the appellant submitted a Certification from the Adjutant General's Service detailing the appellant's service history in the Philippine Army, indicating that he was inducted in October 1944 and retired in September 1975, and that he was "not carried" in the RRGR of 1948. He also submitted a May 1946 Affidavit For Philippine Army Personnel which indicated that he had served as a civilian guerrilla and detailed his specific activities and duties. The RO contacted the service department and requested verification of the appellant's purported service due to these newly received documents in April 2012. However, a May 2012 response from the NPRC indicated that the appellant had not accrued any qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States. In July 2013, the appellant submitted an affidavit signed by R. M and W. P., which stated that the appellant was a veteran of World War II and that he was receiving a pension administered by the Philippine Veterans Affairs Office. The Board notes that this affidavit did not allege that the appellant served as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States and hence has not been submitted to the NPRC for verification. As noted above, various statements and documentation, as well as his hearing testimony, pertaining to the appellant's reported service in the recognized guerillas have been received from him in an effort to support his claim. However, none of that documentation or lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203. On the contrary, that evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought. In this regard, the evidence includes only statements from the appellant, R. M. and W. P., copies of his Social Security and Medicare cards, documents from the Walter Crushing Organization as well as documents issued by the Filipino government. Moreover, the Board notes the April 2003 letter from the NPRC to the RO, indicating that Walter Cushing's guerrilla organization was not officially recognized by the United States Department of the Army. 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 present application for VA benefits and has repeatedly 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. The Board is bound by that certification. See 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 within the service department, not with VA). The Board notes the appellant's argument that it was "very impossible" that there were no records documenting his service in the Armed Forces of the United States and that the fire at the NPRC must have destroyed his records. However, in the February 2012 SSOC, the RO addressed the appellant's concern that his records may have been lost in the fire at the NPRC in 1973 and explained that the lost records did not include records of the recognized guerillas and U.S. Armed Forces, Far East (USAFFE) veterans as they were housed elsewhere at the time, that most of the records burned were the service medical records of New Philippine Scouts and that a list of veterans with recognized military service is still available despite the fire. As such, the appellant's argument is without merit. The Board is sympathetic to the appellant's situation. However, the pertinent legal authority governing entitlement to payments from the FVEC Fund is clear and specific: It must be shown by verification of the United States service department that the underlying claimant has qualifying service. The Board is bound by the law as written. As, on these facts, there is no legal theory that would permit a one-time payment from the FVEC Fund, the appellant's claim must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs