Citation Nr: 1339428 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 10-30 755 ) 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 Fund (FVECF). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION 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). The Veteran had active service in the United States Army from May 1953 to May 1955 during the Korean conflict. He contends that he also served with a recognized guerilla unit from 1944 to 1946 during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The RO determined that the Veteran had no legal entitlement to a one-time payment from the FVECF because he had no qualifying service for purposes of that fund. In July 2013, the Veteran testified via Videoconference from the Los Angeles, California, RO before the undersigned, who conducted the Videoconference from Washington, DC. A transcript of that hearing is associated with the Veteran's electronic (Virtual VA) file. FINDINGS OF FACT 1. The Veteran has not submitted any document issued by a United States service department which verifies World War II service for the United States during the period required for eligibility for FVECF payment. 2. The National Personnel Records Center has determined that the Veteran did not serve as a member of the Philippine Commonwealth Army, or the recognized guerrillas, in the service of the United States Armed Forces. CONCLUSION OF LAW The requirements for eligibility for a one-time payment from the FVECF are not met. 38 U.S.C.A. § 107 Note (West 2002 & West Supp. 2011); 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 American Recovery and Reinvestment Act of 2009 (the Act) established a one-time benefit for certain Philippine veterans to be paid from the Filipino Veterans Equity Compensation Fund (FVECF). American Recovery and Reinvestment Act, § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Payments from the FVECF are limited to eligible persons who submitted an application for payment within the specified time limit. The Veteran submitted an application for payment from the FVECF in March 2009, and alleges he is a person eligible for such payment. In particular, the Veteran contends that his military service meets the criteria established by law for eligibility for a payment from the FVECF. Section 1002(d) of the Act defines the term "eligible person" as any person who served before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, including the recognized guerrilla forces, while such forces were in the service of the Armed Forces of the United States. Eligibility may also be established based on service in the Philippine Scouts. However, the Veteran does not contend that he served in the Philippine Scouts, and that portion of the definition of a person eligible for FVECF payment need not be discussed further. To establish entitlement to FVECF payment, VA may accept documents submitted by a claimant as evidence of qualifying service, without verification from the appropriate service department, if the documents were issued by a U.S. service department, contain the needed information, and in VA's opinion are genuine and contain accurate information. 38 C.F.R. § 3.203(a) (2013); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). In his March 2009 statement in support of the claim for a payment from the FVECF, the Veteran stated he served in the USAFIP NL (US Armed Forces in the Philippines, North Luzon), a recognized guerrilla force, from October 1944 to March 1946. The Veteran identified three units with which he served. The Board notes that it is undisputed that the Veteran had active service in the U.S. Army from May 1953 to May 1955, as shown by a DD214 which has been associated with the Veteran's claims file for many years. That period of service during the Korean conflict does not, however, establish that the Veteran is an "eligible" person for purposes of FVECF payment, as service in support of US military forces prior to July 1, 1946, is required for FVECF eligibility. The RO submitted a September 2009 request for verification of the Veteran's World War II US service to the National Personnel Records Center (NPRC). The Manila RO noted in the request that the Veteran's name was listed as a common name in the Reconstructed Recognized Guerrilla Roster (RRGR). The RO listed each unit identified by the Veteran as a unit in which he served. VA must request verification of service from the appropriate U.S. service department. 38 C.F.R. § 3.203(c); see Soria, 118 F.3d at 749; see also Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008) (noting that the regulation requires verification from the service department whenever a claimant lacks the kind of official evidence specified in § 3.203(a)). In October 2009, the NPRC responded that the Veteran 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 November 2009, the Veteran submitted xerographic copies of several documents, including a "Soldier's Qualification Card" on a WDAGO Form 20 issued in December 1944. That form lists the Veteran's service from October 1944 to December 1945 in the claimed units of the USAFIP, NL, Philippine Army, from October 1944 to December 1945. The "Soldier's Qualification Card" does not indicate the issuing authority. The Veteran also submitted documents from the Philippine Veterans Affairs Office, a birth certificate, passport, and other documents. The Veteran also submitted an undated list which has the notation "SO 266, par 10, cont'd)" at the top. The document, which does not reflect an issuing authority, includes the Veteran's rank and name followed by a number among other listed names. The RO accepted this document as a copy of a roster. In January 2010, the RO denied the Veteran's claim. The Veteran disagreed In March 2010. He also submitted additional documents, including service treatment records dated in 1944 and 1945 and a May 1997 Certification issued by the Armed Forces of the Philippines showing that the Veteran served in a recognized guerrilla unit. In September 2011, the RO again requested that the NPRC verify the Veteran's service, and provided copies of the "Soldier's Qualification Card" (WDAGO Form 20), the May 1997 Certification, and the Roster provided by the Veteran, in addition to the summary of the identifying information provided by the Veteran and the list of the units in which he served. In its October 2011 response, the NPRC again stated a determination that the Veteran 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 his July 2013 videoconference Board hearing, the Veteran and his representative discussed the Veteran's understanding that he was lacking a document from a United States military department, and he acknowledged that NPRC had twice determined that he did not have recognized guerilla service. The Veteran did not provide any pertinent information that had not already been presented to the NPRC for verification of his service. The NPRC has reviewed the documents and identifying information submitted by the Veteran, and has determined that the Veteran did not have service in the organized military forces of the Government of the Commonwealth of the Philippines, including the recognized guerrilla forces, while such forces were in the service of the Armed Forces of the United States prior to July 1, 1946. Under 38 C.F.R. § 3.203, service department findings are binding on VA for purposes of establishing qualifying service. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) ("[t]herefore, VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces."). The Board agrees with the RO's determination that the Veteran has not established legal entitlement to FVECF payment because he has not established qualifying service within the definition of a person eligible for such payment. In this case, VA properly requested verification of the Veteran's service from NPRC. When the Veteran submitted additional documents after the first negative certification, the RO properly assisted the Veteran by submitting the additional information to NPRC and requesting re-review for verification in 2011. Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008). No further attempt to verify the Veteran's service after the second request to NPRC is required because no new, relevant evidence was submitted subsequent to the NPRC's second response. See Capellan, supra (noting that the duty to assist requires further verification from the service department subsequent to the submission of additional relevant evidence). The Board concludes that the Veteran does not qualify for a one-time payment from the FVECF, because he does not have service recognized as service for the United States prior to July 1, 1946, as required to establish eligibility for FVECF payment. Where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Because the Veteran's Korean conflict service does not meet the criteria described, the Veteran does not meet the basic eligibility requirements for a one-time payment from the FVECF, and the claim must be denied based upon a lack of entitlement under the law. The Board notes that VA has complied with its notification and assistance duties in connection with this appeal. The Veteran was notified in a September 2011 letter which advised the Veteran of the information and evidence necessary to substantiate his claim for FVECF payment. See 38 U.S.C.A. § 5103. The Board points out that, in any event, the Veteran clearly is aware of what is needed to substantiate his claim, as he has provided information concerning his alleged US World War II service and service dates. The Board has reviewed the file and the testimony and statements of the Veteran, and finds that there is no further assistance required by VA which would aid in substantiating his claim. ORDER The appeal for a one-time payment from the FVECF is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs