Citation Nr: 1339346 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-31 949A ) 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 Fund. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund. This case was previously before the Board in October 2012 and was remanded for further development. Specifically, the Board determined that the evidence of record showed that the appellant's Filipino Veterans Equity Compensation Fund claim(s) had been decided under two different VA claims file numbers, and instructed the RO/AMC to investigate the matter and if more than one claims file was found, its contents should be consolidated as appropriate. The record reflects that the requested development has been completed and pursuant to the Board's remand directive, in April 2012 the RO/AMC consolidated the appeal under the original claims file number. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the appellant's case. A review of the documents in the Virtual VA and VBMS claims file reveals that the documents therein are duplicative of the evidence in the paper claims file. 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 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. §§ 101(2), 107(b) (West 2002), American Recovery and Reinvestment Act of 2009 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1(d), 3.6, 3.40, 3.41, 3.203 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). The notice requirements of VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The VCAA does not affect matters on appeal when the issue is limited to statutory or regulatory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (interpreting that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). Nevertheless, the appellant was provided notice in an April 2012 letter, and also submitted documents to support his claim during the course of the appeal. However, this is a matter where the law and not the facts are controlling. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Pursuant to the holding in Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008), the RO in the context of the instant appeal has sought and obtained further input from the NPRC which has reiterated that the appellant is without the requisite military service as to render him an eligible person under the American Recovery and Reinvestment Act for a one-time payment from the Filipino Equity Compensation Fund. Thus, there is no possibility that any additional notice or development would aid in the substantiation of his claim. 38 U.S.C.A. §§ 5103, 5103A. The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The appellant contends that he had service with the United States Armed Forces in the Far East (USAFFE) and service with the recognized guerrilla service in the Philippine Commonwealth Army, from 1941 to 1946. Specifically, he has claimed qualifying service in the "F" Company 3rd Battalion, Anderson's Guerilla Organization, from September 1942 to October 1945; with the 103rd Squadron, "C" Company, Luzon Guerilla Army Forces (LGAF) from October 1943 to March 1945, and; with an organization styled the Walter Cushing Guerillas, also identified as the 121st Infantry Regiment, from August 1942 to November 1945. Therefore, he asserts that he is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. Under the American Recovery and Reinvestment Act, enacted February 17, 2009, 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 (Act) § 1002, Pub. L. No. 111-5. Payments for eligible persons are either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Section 1002 of the Act addresses payments to eligible persons who served in the United States Armed Forces in the Far East (USAFFE) during World War II, providing in § 1002(c)(1) 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 (February 17, 2009, through February 16, 2010), 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. An eligible person under Section 1002(d) of the Act 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. The RO attempted to verify whether the appellant had participated in qualifying service for the benefit sought. The NPRC reported in February 1981, January 2010, April 2012, and August 2013, 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. The appellant has submitted multiple documents purporting to show that he served with the USAFFE, and as a recognized guerillas, to include a certification from the Armed Forces of the Philippines indicating that he served as a 1st Lieutenant and Captain with the "F" Co. 3rd Battalion Anderson's Guerrilla from September 1942 to August 1945; a Philippines Guerrilla Military Record and Information Data for the appellant's service; witness affidavits dated in 1980 confirming the appellant's service with the "F" Co. 3rd Battalion Anderson's Guerrilla; Certificate of Service showing service from August 1942 to November 1945 in the Walter Cushing Guerrillas, a unit attached to the 121st Infantry, Philippine Scouts (PS), Army of the United States; Walter Cushing Guerrillas' Military Chronological Records of Service; Oath of Office appointing the appellant a Major in the Walter Cushing Guerillas, attached to the 121st Infantry Regiment, PS, dated in April 1972; Pledge into the Walter Cushing Guerrilla Organization and dated/executed in April 1972; Confirmation of Officers and Enlisted Men's Record dated/executed in April 1972; Appointment and Mission Order dated April 1972; certification from a physician regarding the appellant's World War II service and ailments dated in October 1982; Application for Old Age Pension dated June 1991; copies of identification cards from the Veterans Federation of the Philippines and Republic of the Philippines Office of Senior Citizens Affairs; Certification from the Philippine Veterans Affairs Office (PVAO) dated March 2008; copy of check issue by PVAO dated February 1999 and bank passbook, and; a joint affidavit dated in December 2007 supporting the appellant's claim that he served with the 103rd Squadron, "C" Company, LGAF from October 1943 to March 1945. The documents from the Philippine government fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, because they are not a official documents of the appropriate United States service department, but rather are documents generated by the Philippine government. As such, those documents may not be accepted by the RO or 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. As noted, 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, 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. 80, 85 (1994). Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits from the United States, administered by VA. The submitted oaths are also not sufficient for benefits from the United States, 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 an eligible person for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs