Citation Nr: 1339131 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 11-20 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 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 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 Armed Forces of the United States. CONCLUSION OF LAW The service requirements for eligibility to a one-time payment from the FVEC fund are not met. 38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009); 38 C.F.R. § 3.203 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)(1) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). As for the appellant's claim of basic eligibility for a one-time payment from the FVEC Fund, the United States Court of Appeals for Veterans Claims (Court) has held that in cases where the appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated to inform the appellant of the information or evidence necessary to prove the element of veteran status. Palor v. Nicholson, 21 Vet. App. 325, 331 (2007). In this case, although the appellant was not provided with the required notification prior to the initial adjudication of his claim, the Board finds that no prejudice has resulted. In the January 2010 and October 2010 decisional letters, the RO explained that verification of military service was the responsibility of the National Personnel Records Center (NPRC) and its findings were binding on VA. Further, in the June 2011 statement of the case the appellant was notified of what was required to prove entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund (the Fund), to include notice of 38 C.F.R. § 3.203 and the American Recovery and Reinvestment Act (the Act). Additionally, the appellant has not referenced any other pertinent, obtainable evidence that remains outstanding. With respect to the appellant's claim, where as here, the interpretation of the law is dispositive of the appeal, neither the duty to notify nor the duty to assist provisions of the VCAA apply. See Manning v. Principi, 16 Vet. App. 534, 542 (2002), citing Livesay v. Prinicipi, 15 Vet. App. 165 (2001). A one-time benefit is provided for certain Philippine veterans to be paid from the Filipino Veterans Equity Compensation Fund. See The Act, § 1002(b). Congress recognized that certain Filipino veterans were granted benefits prior to a 1946 Act, but that under current law, the service of certain other Filipino veterans is deemed not active service. The Act, § 1002(a)(5). Congress recognized that the Philippine islands were a United States possession and that the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army were called into the service of the United States Armed Forces on July 26, 1941 by an executive order of the President. The Act, § 1002(a). Wartime service of the Scouts continued until the end of 1946 but gradually disbanded and was disestablished in 1950. The Act, § 1002(a)(4). Pursuant to the Act, VA may make a one-time payment from the Fund to an eligible person who submits a claim for benefits during the one-year period beginning on the date of the enactment of the Act, i.e., prior to February 17, 2010. The Act, § 1002 (c)(1), (f). An eligible person is anyone who served 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 in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945, and was discharged or released from service under conditions other than dishonorable. The Act, § 1002(d)(1), (2). VA may accept as evidence of service, without verification from the appropriate service department, a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, if the evidence meets certain other conditions. 38 C.F.R. § 3.203(a). When this type of evidence is not submitted, then VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). Where a claimant submits new evidence, that evidence should be submitted to service department for consideration of verification of service. Capellan v. Peake, 539 F.3d 1373, 1381 (Fed. Cir. 2008). VA is prohibited from finding that an individual served in the United States Armed Forces based on anything other than an authentic and accurate service department document or service department verification. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The Veteran's DD 214 reflects that he had active service in the United States Navy from February 1955 to August 1975. In his timely April 2009 claim, the appellant contends that he is eligible for a one-time payment from the Fund as a result of his service with the 66th Infantry Division, USAFFE, from December 1943 to December 1945. In April 2009 the appellant submitted a baptism certificate and a copy of a driver's license. In June 2009 the RO sought certification of the appellant's service from the National Personnel Records Center (NPRC) and requested that they "furnish complete AGUZ Form 632 and furnish all extracts of Form 23 executed prior to and subsequent to 06-30-46." The RO also indicated that the appellant's name was listed in "#54 file # 265" of the Reconstructed Recognized Guerilla Roster maintained by the VARO Manila. In August 2009 the NPRC 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. In August 2010 the appellant submitted a statement from the daughter-in-law of a service comrade (LE) and a summary statement from the spouse of a service comrade (ER). These statements essentially indicated that the appellant had service with USAFFE during the liberation of the Philippines in January 1945 and had served with LE and ER at that time. In August 2010 the RO sought re-certification of the appellant's service from the NPRC. The response from NPRC in September 2010 was 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 provided no further pertinent evidence (since the September 2010 re-certification) that would warrant another request for re-certification of his service. In this regard, the Board notes that in May 2013 VA received documents pertaining to two American service comrades that were essentially duplicative of that already of record and had been previously considered in prior certifications from the NPRC. The Board finds that the appellant is not legally entitled to a one-time payment from the Fund. At no time has the appellant submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, an original Certificate of Discharge, or any other document that demonstrates the required service without service department verification. See 38 C.F.R. § 3.203 (a)(1). The NPRC has determined in multiple instances (including most recently in September 2010) after reviewing multiple documents that the appellant does not have the requisite service. The NPRC's certification is binding on VA and VA has no authority to change or amend the finding. Duro, 2 Vet. App. at 532. 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. (1994), overruled on other grounds, D'Amico v. West, 209 F.3d 1322, 1325 (Fed. Cir. 2000). Any documents certifying that the appellant is a veteran of World War II that have been provided by the Armed Forces of the Philippines are inadequate to establish veteran status. Philippine veterans are not eligible for veterans' benefits unless a United States service department documents or certifies their service. Soria v. Brown, 118 F.3d 747, 749 (Fed.Cir.1997). 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, therefore, is not legally entitled to a 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. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs