Citation Nr: 1334054 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 13-00 287A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The record indicates that, in his claim for payment from the Filipino Veterans Equity Compensation Fund, the appellant indicated he served in the United States Armed Forces in the Far East (USAFFE) from December 1941 to June 1945, but no qualifying service with the United States Armed Forces has been shown, as will be discussed below. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. Although the appellant initially requested a hearing on his substantive appeal in January 2013, he later withdrew his hearing request in a July 2013 written statement. 38 C.F.R. § 20.704(e). The Board must note that in reviewing this case the Board has not only reviewed the appellant's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. 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). FINDINGS OF FACT The National Personnel Records Center (NPRC) 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 does not have recognized active military service for the purpose of obtaining the one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act of 2009 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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." American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). 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 (c)(1) provides that the Secretary 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 this Act, submits to the Secretary a claim for benefits under this section. The application for the claim shall contain such information and evidence as the Secretary may require. Section 1002 (c)(2) provides that if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person. Section 1002 (d) provides that 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 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. The surviving spouse of an eligible person is not identified as an eligible person in their own right. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies their service. Soria, 118 F. 3d at 749. In this case, the appellant provided certain information, including his service number, date and place of birth, unit in which he served, and dates of service, necessary for verification of his military service. This information was submitted to the National Personnel Records Center (NPRC) on several occasions. However in June 1952, May 1994, and January 1995 the NPRC certified 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. Throughout the course of this appeal the appellant has submitted several documents in support of his claim, including a Certification from the Office of the Adjutant General dated July 1999, enlistment record, and an affidavit from the Philippine Army Personnel. In August 2012 the VA requested the NPRC to again re-verify the appellant's service and attached a copy of the referenced documents. However in October 2012 the NPRC again certified no change was warranted in the prior negative service certification. The appellant also submitted a letter from the Department of National Defense dated June 1955 reflecting he was awarded a pension from the Philippine government for his military service. The Board has considered that the appellant is a Philippine veteran entitled to benefits from the Philippine government, but this is not sufficient to establish his status as an American veteran. Upon review of the evidentiary record, the Board notes that the appellant has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1). Instead, documents provided merely show that the appellant had military service during the period from December 1941 to June 1945 and is a veteran of the Philippine government. These documents fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department, but rather documents from the Philippine government. As such, the documents may not be accepted as verification of service for the purpose of determining eligibility for VA benefits, including the one-time payment from the Filipino Veterans Equity Compensation Fund. The NPRC 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. This verification is 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 proper course for the appellant, if he believes there is a reason to dispute the report of the service department or the content of military records, is to pursue such disagreement with the service department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that government, is not sufficient for benefits administered by VA. The Department of Veterans Affairs is bound to follow the certifications by the service departments with jurisdiction over United States military records. Based upon the record in this case, 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. He may not, therefore, be considered an eligible person for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund and his claim is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, because the current claim is limited to statutory interpretation, the notice provisions do not apply. See Smith v. Gober, 14 Vet. App. 227, 230 (2000) (claim that a Federal statute provides for payment of interest on past-due benefits), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). Further, it involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). Regardless, the Board finds the VA's duties to notify and assist have been met. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. The appellant has submitted relevant service records, and these records have formed the basis of multiple requests for certification of the appellant's service from the relevant service department throughout the period on appeal. Therefore, the VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs