Citation Nr: 1338031	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  11-24 248	)	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

The appellant and her niece


ATTORNEY FOR THE BOARD

Tiffany Berry, Counsel 




INTRODUCTION

This appeal to the Board of Veterans' Appeals (Board/BVA) comes from May and September 2010 determinations by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines.

As support for her claim, the appellant testified at a Travel Board hearing in February 2013 before the undersigned Veterans Law Judge.  During the hearing, the appellant submitted additional evidence and waived her right of initial RO review.  38 C.F.R. §§ 20.800, 20.1304 (2013).  A copy of the transcript has been associated with the appellant's virtual claims file.  

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).


FINDING OF FACT

The National Personnel Records Center (NPRC) has certified that the appellant was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) in the service of the United States Armed Forces of the United States during World War II.


CONCLUSION OF LAW

The legal criteria for entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund are not met.  38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); 38 C.F.R. § 3.203 (2013); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). 



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). 

The Board's action below had denied the claimed benefit as a matter of law.  In cases where the law, and not the evidence, is dispositive, the VCAA is not for application.  Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 2-2004 (March 9, 2004); see also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  

Legal Criteria 

The President of the United States signed the American Recovery and Reinvestment Act of 2009 on February 17, 2009, authorizing the release of a one-time, lump-sum payment to eligible World War II Philippine Veterans.  These payments are to be made through VA.  American Recovery and Reinvestment Act (ARRA) § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).

Payment from the FVEC Fund to an eligible person who is not a citizen of the United States shall be in the amount of $9,000.00, and to an eligible person who is a citizen of the United States in the amount of $15,000.00.   ARRA, Title X, Chapter 2.5.1, § 1002(e).  Not more than one payment from the FVEC Fund shall be made to each eligible person.  ARRA, Title X, Chapter 2.5.1, § 1002(f).  There is authorized to be appropriated to the FVEC Fund $198,000.000.00, to remain available until expended.  ARRA, Title X, Chapter 2.5.1, § 1002(l).

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.  See ARRA § 1002(d), Pub. L. No. 111-5 (enacted February 17, 2009).

Under the implementing regulation to 38 U.S.C.A. § 107, for a Regular Philippine Scout, or for a member of one of the regular components of the Philippine Commonwealth Army while serving with the Armed Forces of the United States, the period of active service will be from the date certified by the Armed Forces as the date of enlistment or the date of report for active duty, whichever is later, to the date of release from active duty, discharge, death, or in the case of a member of the Philippine Commonwealth Army June 30, 1946, whichever was earlier.  The active service of members of the irregular forces guerrilla will be the period certified by the service department.  38 C.F.R. § 3.41 (emphasis added).

For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial benefits VA may accept evidence of service submitted directly by the claimant such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from appropriate service departments if the evidence is a document issued by the service department; the document contains needed information as to the length, time and character of service; and, in the opinion of VA the document is genuine and the information contained therein is accurate.  38 C.F.R. § 3.203(a) (emphasis added).

VA is prohibited from finding that a particular individual served in the United States Armed Forces on any basis other than a United States Service Department document that VA believes to be authentic and accurate, or United States Service Department verification.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  Service Department findings are binding on VA for the purpose of establishing service in the United States Armed Forces.  Id; see also Dacoron v. Brown, 4 Vet. App. 115, 120 (1993).  

When the claimant does not submit evidence of service, or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a) cited above, VA shall request verification from the service department.  38 C.F.R. § 3.203(c).  Service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces.  See Laruan v. West, 11 Vet. App. 80, 82 (1998).

Evidence and Analysis

Here, the appellant asserts that she is a qualifying Veteran as she served in the Anderson Guerrilla/ Walter Transportation unit during World War II.

Information obtained from the NPRC in January and May 2010, June 2012, July 2013, and most recently in August 2013, however, indicates the appellant's name was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) in the service of the United States Armed Forces.  She did not submit a DD Form 214 (or date appropriate form), 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).  She has submitted various documents and statements in support of her claim, including several affidavits dated from 1976 attesting to her service during World War II.  She also submitted an August 1976 letter from the Republic of the Philippines, Department of National Defense, Philippines Veterans Affairs Office informing the appellant that her military status as Deserving Guerilla Veteran was approved.  A subsequent letter also stated that the appellant was a veteran of the Philippine Revolution/ World War II, but did not designate a rank and did not state with whom she served.  

The Board has considered these evidentiary submissions, but 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.  As such, these documents may not be accepted as verification of service for the purpose of determining eligibility for VA benefits, including, here, the one-time payment from the FVEC 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.  The Board acknowledges the appellant's arguments to the contrary, both written and during her February 2013 Travel Board hearing, that she had the requisite service.  However, the Board is not free to ignore the certification of the NPRC.  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).  This department is bound to follow the certifications by the service departments with jurisdiction over United States military records.  NPRC has duly considered the appellant's application for VA benefits and, in response, certified that she had no qualifying active military service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, and the Board is bound by this certification.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department refuses to verify the claimed service, the applicant's only recourse lies within the service department, not with VA).

Because 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, she may not be considered a Veteran for the purpose of establishing entitlement to the one-time payment from the FVEC Fund.

Accordingly, the claim is denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement).



ORDER

Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs