Citation Nr: 1339461	
Decision Date: 12/02/13    Archive Date: 12/13/13

DOCKET NO.  11-21 209A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

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


ATTORNEY FOR THE BOARD

P. Olson, Counsel



INTRODUCTION

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 determination 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 service department 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 U.S. Armed Forces during World War II.


CONCLUSION OF LAW

The appellant does not have recognized active military service for the purpose of obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); 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 FINDING AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

The question currently before the Board is whether the appellant has qualifying service to establish eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund.  The record shows that the National Personnel Records Center (NPRC) concluded that the appellant had no qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Because qualifying service and how it may be established are governed by law and regulations and the service department's certification is binding, the Board's review is limited to interpreting the pertinent law and regulations.  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.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004. 

Nonetheless, a February 2013 letter fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  The letter informed the appellant of what evidence was required to substantiate the claim(s) and of the appellant's and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates.  In addition, the appellant has had a meaningful opportunity to participate in the processing of the claim; and he has submitted letters and service records in support of his claim.  The appellant has not identified or submitted any additional pertinent evidence which should be considered.  

Eligibility for FVEC One-Time Payment

The appellant seeks a one-time payment from the Filipino Veterans Equity Compensation Fund.  Under the American Recovery and Reinvestment Act, 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 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).  Payments for eligible persons will be either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service."  Nothing in the act "prohibit[s] 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 this Act."

Section 1002 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II.  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 (New) Philippine Scout under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538  ), Public Law 190, 79th Congress; and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable.

VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department, if the evidence meets the following conditions:  (1) The evidence is a document issued by the service department.  A copy of an original document is acceptable if the copy is issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; and (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of VA, the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a) (2013).

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), VA is required to request verification of service from the service department.  38 C.F.R. § 3.203(c).  Certification of service is a prerogative of the service department, and VA has no authority to amend or change such a decision.  38 C.F.R. §§ 3.40, 3.41.  Findings by a service department verifying or denying a person's service are binding and conclusive upon VA.  Spence v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). 

In this case, the appellant submitted documents along with his initial July 2009 claim.  The appellant submitted a Statement of Service for hospitalization benefits completed by him in May 1988 which noted that he used an alias, that he enlisted in September 1943 and was discharged in December 1945, and that he was inducted into the active guerilla service of the Hukbalahap guerilla forces in Squadron 9, 3rd Squad, 3rd Battalion, Regional Command No. 4 under the command of Capt. Eusebio Domingo and that he had participated in several encounters in the area of coverage of regional command No. 4 in the province of Nueva Ecija.  He also submitted an attestation by Juan Y. Calma, overall Commanding Officer to the appellant's guerrilla service during World War II and honorable discharge/separation from service was attached.  He submitted an identification card issued in July 2009 from the Philippine Veterans Affairs Office indicating that he was a World War II Veteran as well as a postal identity card issued in July 2009.  The appellant further submitted an Old Age pension application, a copy of his savings account passbook, and a May 3, 1988 sworn statement by Juan Y. Calma and Ben Y. Salas swearing that the appellant became one of their comrades in the Hukbalahop as a private of Squadron 9, 3rd Squad, 3rd Battalion Regional Command No. 4 and that the appellant's alias was on file in the Hukbalahap Roster at the National Archives in Washington, D.C.    

In February 2010, NPRC certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. 

In May 2010, in addition to duplicate documents already of record, the appellant submitted a certification that he was an active pensioner under RA-6948 as amended by RA-7696.  In June 2010, in addition to duplicate documents already of record, the appellant submitted a May 1988 certification that he was a veteran of World War II who served with Sqdrn 9 3rd Sqd. 3rd Bn. RC-4 with the grade/rank of PVT and that his name was carried in the Hukbalahap Roster PD-1207.  In November 2010, in addition to duplicate documents already of record, the appellant submitted an identification card issued by Republic of the Philippines, Office of the Senior Citizens Affairs in Laur, Nueva Ecija.  He also submitted a Community Tax Certificate issued in September 2010.

In May 2012, in addition to duplicate documents already of record, the appellant submitted a verification of identity of the appellant.  In January 2013, in addition to duplicate documents already of record, the appellant submitted a map entitled "THE GUERRILLAS (Historical Abstracts); additional information compiled regarding the founding of the Hukbalahap, the Hukbalahap sovereignty, liberation and imprisonment, the arrest of Taruc, and the Roxas and the Huks; Presidential Decree No. 12-07; Republic Act No. 897; 38 C.F.R. § 3.203; and an alphabetized list of guerilla units.

In February 2013, the RO requested that the NPRC review additional evidence submitted and determine if there was any change in the negative finding that the appellant was not a veteran.  In March 2013, the NPRC indicated that no change was warranted in the prior negative service certification. 

Upon review of the evidentiary record, the Board notes that the appellant has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge.  See 38 C.F.R. § 3.203(a)(1).  Although the appellant did submit various records in support of his claim, 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, but rather documents from the Philippine government.  As such, these documents may not be accepted 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. 

The NPRC has certified on two occasions that the appellant had no qualifying 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).  VA is bound by service department determinations regarding what constitutes service in the Armed Forces of the United States.  Furthermore, after the submission of additional documents, VA requested another verification of the appellant's service status.  See Capellan v. Peake, 539 F.3d 1373, 1381 (2008) (noting that the duty to assist requires that where new evidence is submitted by a claimant, it should be submitted for verification of service from the service department pursuant to 38 C.F.R. § 3.203(c)).  The additional evidence did not change the NPRC's finding.  

The Board notes that it is sympathetic to the appellant's claim but is bound by the law and without authority to grant benefits on an equitable basis.  38 U.S.C.A. §§ 503, 7104 (West 2002).  No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress.  Smith v. Derwinski, 2 Vet. App. 429 (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 administered by VA.  VA 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.  He is not, therefore, considered an eligible person for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. 

Because the disposition of this claim is based on the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  Moreover, because the law, rather than the facts of the case, is controlling, the provisions of 38 U.S.C.A. § 5107(b) are not for application.


ORDER

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




____________________________________________
K. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs