Citation Nr: 1336734 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 12-28 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The appellant alleges military service in the Philippines during World War II. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Manila, Philippines. This matter was previously before the Board in August 2013 when it was remanded for further action. It has now returned to the Board for appellate consideration. 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). FINDINGS OF FACT 1. There has been no demonstration by a DD Form 214, Certificate of Release or Discharge from Active Duty, or an original Certificate of Discharge by a United States service department, that the appellant had the requisite military service as required by law for eligibility for one-time payment from the FVEC Fund. 2. The National Personnel Records Center (NPRC) has stated that the appellant had no requisite military service, to include as a member of the Philippine Commonwealth Army or the recognized guerrillas, in the service of the Armed Forces of the United States. CONCLUSION OF LAW The service requirements for eligibility to a one-time payment from the FVEC Fund have not been met. 38 U.S.C.A. § 5101(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 FINDINGS AND CONCLUSION The U. S. Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As the law is dispositive in the instant claim, the VCAA is not applicable. See also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). (Nonetheless, the appellant was informed of the necessary requirements for substantiating his claim in statements of the case and a supplemental statement of the case dated in June 2010, August 2010, and September 2012.) Legal Criteria Under the American Recovery and Reinvestment Act, a one-time benefit was 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. The Secretary of VA is to administer the fund consistent with applicable provisions of the Title 38 of the United States Code. For eligible persons who accept a payment from the FVEC Fund, such payment shall constitute a complete release of any claim against the United States by reason of such 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 this Act. 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. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Under 38 C.F.R. § 3.203(a), the VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of the Department of Veterans Affairs the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). 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); 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. 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 his service. 38 C.F.R. § 3.203; Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Analysis The claims file includes a VA Form 21-4138, dated in February 2009, in which the appellant stated that he served with the recognized guerillas from September 1942 to an unknown date. The appellant has submitted several documents in support of his claim. A VA Form 21-3101, Request for Information, notes that the appellant is not listed in the Reconstructed Recognized Guerilla Roster (RRGR) maintained at the Manila VARO. The form includes an October 2009 response by the National Personnel Records Center (NPRC). It reflects 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." Correspondence dated in October 1981 from the Republic of Philippines, Ministry of National Defense, and the Philippine Veterans of Affairs Office reflects that the appellant's back pay claim under Republic Act. No. 897 was approved. The claims file includes a photocopy of a Certificate of Clearance for Firearm from the Republic of the Philippines, Headquarters, Military Police Command and Philippine Army. It is undated and appears to have been completed in two different types of pen and/or pencil. It reflects that the appellant was formerly connected with the Engineer Combat Battalion The claims file also includes a list of names and identifying information entitled "Restricted". It notes that it is a continuation page of information from April 1946. The appellant's name is listed along with the designation of 2nd Replacement Company, Floridablanca. An undated and unsworn "affidavit" by L.F. reflects that he personally knows the appellant who was a "bona fide" member of his command assigned to C Company of the Engineer Combat Battalion of the Bataan Military District. He reports that the appellant was inducted into the Guerilla Forces of the East Central Luzon Guerilla Area, Commonwealth of the Philippines on September 7, 1942 and served continuously until properly released or discharged. Photocopies of identification cards for the appellant from the Philippine Veterans Affairs Office, the Veterans Federation of the Philippines, and the Republic of the Philippines Office for Senior Citizens Affairs, are associated with the claims file. An April 16, 1946 Affidavit reflects that the appellant served with the Military Guerillas in September 1942, Squadron 70 from September 1942 to December 1943, Engineer Battalion from January 1944 to February 1945, 894 Clearing Company, 38th Division from February 1945 to July 1945, was sent to processing from July 1945 to September 1945, had garrison duties from September 1945 to April 1946, and was awaiting processing in April 1946. The appellant stated that he had been a rifleman, fought the Japanese, and "mopped up" the 38th Division. In February 2010, the appellant requested re-verification of his military service with NPRC under a different middle name. A VA Form 21-3101, Request for Information, notes that the appellant is not listed in the Reconstructed Recognized Guerilla Roster (RRGR) maintained at the Manila VARO. The form includes a 2010 response by the National Personnel Records Center (NPRC). It reflects 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." The appellant submitted August 2010 correspondence in which he attached documents of his "cousin and comrade" to support that he [the appellant] had requisite military service. He stated that his cousin's application was "pending for approval until the time he [the cousin] died." A certification of the Office of the Punong Barangay reflects that the appellant is known to the affiant to be a "person of good moral character and of excellent social standing in the community." A photocopy of a certificate of the Philippine Veteran's Bank reflects that the appellant had stock in the bank. A statement from the Office of the Civil Registrar dated in February 2011 reflects that the appellant was born on June [redacted], 1925. This differs from the appellant's statement in previous documents that he was born on June [redacted], 1924. The claims file includes a subsequent "Affidavit of Discrepancy" in which the appellant reported that he was born on June [redacted], 1925. A July 2010 Certificate from the General Headquarters, Armed Forces of the Philippines reflects that the appellant was born on October [redacted], 1926 (a third alleged birthdate), had military status of "guerilla," and joined Squadron 70 in September 1942. In September 2010 correspondence, the appellant attached photocopies of paperwork for other purported veterans. He stated that these other individuals where comrades of his. He also stated that he had no further documents because they were washed out when Mt. Pinatubo erupted. In May 2013, the RO requested NPRC verification of the appellant's service under five different possible names and three different possible dates of birth, and provided his claimed units of service. The VA Form 21-3101, Request for Information, notes that the appellant is not listed in the Reconstructed Recognized Guerilla Roster (RRGR) maintained at the Manila VARO. The form includes a June 2013 NPRC response which reflects that "no change warranted in prior negative service certification." As noted above, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service. 38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). The claims file does not include 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). The documents and photocopies of identification cards associated with the claims file 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. As such, they may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including compensation from the FVEC Fund. Moreover, as noted above the NPRC has found that the appellant did not have the requisite service. Recognition of service by the Philippine 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. The proper course for an 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). Based upon the record in this case, the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Veteran status is a prerequisite to entitlement to payment from the FVEC fund. As such, entitlement to a one-time payment from the FVEC Fund is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs