Citation Nr: 1336065 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 11-24 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant is eligible for the one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION 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). This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In the substantive appeal, it appeared that the appellant wished to appoint his daughter to represent him before VA. By way of a September 2013 letter, VA advised the appellant as to how he could appoint his daughter or another individual or organization as his representative for VA purposes. The appellant did not respond and accordingly he is unrepresented. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. 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 & West Supp. 2013); 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 FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VA's duties to assist and notify have been considered in this case. However, as it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not applicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. In this case, the law is dispositive, and basic legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is precluded based upon the appellant's lack of qualified service; therefore, legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). Nevertheless, it is noted that VA provided notice to the appellant in a February 2013 letter as to the information and evidence required to substantiate his claim, the allocation of responsibilities between himself and VA, and information concerning how ratings and effective dates are assigned. II. Decision 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). 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 Filipino Veterans Equity Compensation 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 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--(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. In February 2010 and April 2013, the NPRC reported 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 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 the appellant has submitted affidavits attesting to his qualifying service based on his military service during World War II in the Philippines. However, this information does not 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. As such, the documents may not be accepted by the Board 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 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, who 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. This department 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. The appellant may not, therefore, be considered a Veteran for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. ORDER Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs