Citation Nr: 1339062 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 10-47 852 ) 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. REPRESENTATION Appellant represented by: His granddaughter M.J.C. ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION Certification by the service department shows that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces. This matter comes to the Board of Veterans' Appeals (Board) from a December 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which found that the appellant did not have qualifying military service to be eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund. This matter was last before the Board in July 2013, at which time it was remanded for further development. 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 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. 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. § 501(a) (West 2002); 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 Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). In some cases, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (2013) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). Nevertheless, the RO did provide notice to the appellant concerning how to substantiate his claim by way of a December 2012 letter. Here, as discussed below, there is no dispute as to the pertinent facts, such as the name or unit of service for the appellant and the appellant has provided his units of assignment and various possible spellings of his surname. The appellant has not made the RO or Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Pursuant to both 38 C.F.R. § 3.203(c) and VA Secretary's statutory duty to assist (as set forth in 38 U.S.C.A. § 5103A), new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review. See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008). The RO has submitted all pertinent identifying information for verification to the NPRC. The Board finds that there is no further assistance that would reasonably be expected to aid in deciding the claim. Resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits, including under the FVEC Fund. Analysis The appellant seeks compensation from the FVEC Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009) (to be codified in Title 38 of the United States Code: Veterans' Benefits). Payments for eligible persons total either $9,000 (for non-United States citizens) or $15,000 (for United States citizens). 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 the Act. Section 1002(d) defines an eligible person as (1) any person who served either (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). For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate United States service department under the following conditions: (1) the evidence is a document issued by the United States service department; (2) the document contains pertinent information as to length, time and character of service; and (3) in VA's opinion, the document is genuine and contains accurate information. 38 C.F.R. § 3.203(a) (2012). Where service department certification is required, findings by the service department verifying a person's service are binding on VA. See, e.g., Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The proper course for an 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. (1994), overruled on other grounds, D'Amico v. West, 209 F.3d 1322, 1325 (Fed. Cir. 2000). Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for VA benefits. In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant contends that he served with the Philippine Commonwealth Army and his unit of assignment was "2nd Repl. Co. 1st Repl. Bn. PA APO 72" with a period of active duty from December 16, 1941, to December 28, 1945. See appellant's claim for one-time payment from the FVEC Fund dated in February 2009. The RO found that the appellant's name was not listed in the Reconstructed Recognized Guerrilla Roster maintained at their site. In June 2009, the RO requested that the NPRC verify United States Armed Forces of the Far East (USAFFE) service with 2nd Repl. Co. 1st Repl. Bn. PA APO 72. In October 2009, the NPRC certified that 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. In January 2010 in support of his claim, the appellant submitted a Certification from the Department of National Defense, Philippine Veterans Affairs Office. The Certification indicated that the appellant was approved for an Old Age Pension as of April 1990. In a February 2010 statement, the appellant related continued disagreement with the RO's determination that he was not eligible for the requested benefit. He stated that from a perusal of his service records that his unit of assignment was "C" Co. 3rd Bn. 101st USAFFE. Along with this statement he submitted a Commonwealth of the Philippines, Philippine Army discharge certificate noting service therein from December 16, 1941, to December 28, 1945. In February 2010, the RO requested that the NPRC verify USAFFE service with "C" Co. 3rd Bn. 101st Inf. In March 2010, the NPRC certified that 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. Of record is a March 2010 Report of General Information (VA Form 21-0820). The report notes that the appellant indicated that he may have used several variations of his name during his military service. He supplied the various spellings. In May 2010, the RO requested that the NPRC verify USAFFE service under the variously spelled surnames he provided in March 2010. In June 2010, the NPRC certified that 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, under any spelling of his surname that he provided. In his November 2010 Substantive Appeal (VA Form 9) the appellant expressed his continued disagreement with the RO's denial. He contended that he had qualifying service for the benefit sought. In October 2012 the appellant submitted an Affidavit for Philippine Army Personnel. The Affidavit notes that the appellant reported having been inducted to the USAFFE and serving therein from December 12, 1941, to December 16, 1942. In October 2012 the appellant also submitted a February 2012 Certification from the General Headquarters, Armed Forces of the Philippines, Office of the Adjutant General. The Certification showed that that office indicated USAFFE status from December 1941 to December 1945. In a November 2012 statement, the appellant continued to maintain that he had qualifying service. He related that he served in the USAFFE from December 1941 up to 1945. In December 2012, the RO again requested that the NPRC verify USAFFE service in light of the newly submitted documents and under the various spellings of his surname that he provided. In January 2013, the NPRC responded that there was "[n]o change warranted in prior negative service certification," under any spelling of his surname that he provided. In July 2013, the Board remanded the claim to again attempt to verify whether the appellant had qualifying service. In particular, the Board requested that the RO attempt to verify qualifying service under all of the various spellings of the appellant's surname that he has provided, as well as for his alleged military service with "C" Co. 3rd Bn. 101st Inf., as the aforementioned verification attempts did not address this reported unit of assignment. In August 2013, the RO again requested that the NPRC verify whether the appellant had qualifying service under all of his reported surname spellings and for his alleged military service with "C" Co. 3rd Bn. 101st Inf. In that same month, the NPRC responded negatively, indicating that there was "no change warranted in prior negative certification." With respect to this request, the Board notes that the RO's initial request contained an incorrect claims number. However, the response from the NPRC references the correct claims number, such that additional remand is not necessary. The documents submitted by the appellant fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as these are not official documents of the appropriate United States service department. More importantly, 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 USAFFE. This verification is binding on VA such that VA has no authority to change or amend the finding. See Duro, 2 Vet. App. at 532. To the extent that the appellant contends that, under the provisions of 38 C.F.R. § 3.302(a), the Certification from the Department of National Defense, Philippine Veterans Affairs Office, Commonwealth of the Philippines, Philippine Army discharge certificate, Affidavit of Philippine Army Personnel and Certification from the General Headquarters, Armed Forces of the Philippines, Office of the Adjutant General, are sufficient to establish his eligibility for a one-time payment under the FVEC Fund, the Board notes that qualifying service for a one-time payment from the FEVC Fund can only be demonstrated by official U.S. Department of Defense service documents, such as a Form DD 214, Certificate of Release or Discharge from Active Duty. 38 C.F.R. § 3.203(a). The documents provided by the appellant are from the government of the Philippines and are not official U.S. Department of Defense service documents. Where a claimant does not submit satisfactory proof of qualifying service, VA is required to seek U.S. service department verification of service before rendering a decision. Capellan, 539 F.3d at 1380. The NPRC is the agency designated to verify service on behalf of the U.S. military, naval, and air services. According to the NPRC, the appellant does not meet the basic eligibility requirements for FVEC Fund entitlement. 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. Therefore, 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 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs