Citation Nr: 1333912 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 12-02 199 ) 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. WITNESSES AT HEARING ON APPEAL Appellant and grandson ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO). The Appellant appeared at a January 2013 hearing before the undersigned and the transcript of that hearing is of record. The Board remanded the matter in June 2013 for additional evidentiary development. The Board is satisfied that there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 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). The issue of entitlement to surviving spouse benefits has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. In this regard, the Board observes that a VA Form 21-22 in favor of the American Defenders of Bataan and Corregidor, Inc. was executed by the appellant in April 2012. However, it was executed in conjunction with her claim as a surviving spouse and with her spouse's claim number. Hence, for the present appeal, it has been determined that the appellant is unrepresented. FINDING OF FACT The National Personnel Records Center (NPRC) 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. CONCLUSION OF LAW The service requirements for eligibility to a one-time payment from the FVEC fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2013); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009); 38 C.F.R. § 3.203 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002). VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004). In January 2013, the appellant appeared at a hearing before the Board. Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). For eligible persons who accept a payment from the FVEC Fund, the payment shall constitute a complete release of any claim against the United States by reason of that 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 the Act. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). For payments to eligible persons who served in the United States Armed Forces in the Far East during World War II, 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 a claim to VA for benefits under the act. The application for the claim shall contain the information and evidence VA requires. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). 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 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and was discharged or released from service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). 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) (2012), 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 with the relevant service department, not with VA. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). 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 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). In January 2010, VA received the appellant's claim with identifying information, noting that her service number was "UNKNOWN." She contended that she was eligible for a one-time payment from the FVEC fund as a result of service in the Women's Auxiliary Service, 15th Infantry Regiment, USAFIP NL, from 1942 to 1945. The appellant also submitted additional documents, including an affidavit for Philippine Army Personnel for her spouse; affidavits from herself and her spouse; her marriage certificate and birth certificate; and a copy of her spouse's Veterans Claims Commission and Acknowledgement cards. The RO has concluded that the appellant's name (including all of its variations) was not listed in the Reconstructed Recognized Guerrilla Roster maintained by the RO. The RO requested verification of service by the applicable United States service department using the appellant's full names, place of birth, date of birth, dates of service, and unit designations provided by the appellant in her supporting documents. In addition to the verification information the RO listed on the forms, the RO also supplied the NPRC with copies of most of the relevant records submitted by the appellant. In September 2011, April 2012, and July 2013, the National Personnel Records Center (NPRC) responded 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. Consequently, the RO determined that the appellant did not have the requisite service to establish eligibility for payment from the FVEC Fund and denied the claim. During the course of the appeal, the appellant has submitted additional documentation contesting the RO's decision and attesting to her service in the recognized guerillas. However, none of the submitted documentation and lay evidence qualifies as acceptable proof of service. 38 C.F.R. § 3.203 (2013). That evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought. Therefore, the 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 appellant's application for VA benefits and certified that she had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. The Board is bound by that certification. 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 with the service department, not with VA). The Board concludes that the appellant did not meet the requisite legal requirements for obtaining a one-time payment from the FVEC Fund. Therefore, her claim for benefits must be denied. In reaching this conclusion, the Board remains sympathetic to the appellant and does not question the sincerity of her belief that she is entitled to VA benefits, specifically in the form of payment from the FVEC Fund. Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C.A. § 7104 (West 2002 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994). ORDER The appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund and the claim is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs