Citation Nr: 1340144 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 11-03 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant has legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. It is noted that the appellant, in an August 2010 statement, indicated that she had a representative. The RO provided notice in September 2010 and October 2012 as to how she could appoint a representative. By way of a May 2013 letter, the RO informed her that it had no record of her appointing a service organization or other representative to assist her with her claim. She was informed that no further action could be taken with regard to representation until she submitted documentation appointing a representative for VA purposes. The appellant did not respond and therefore is unrepresented in this matter. 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 United States Armed Forces. CONCLUSION OF LAW The criteria for legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. §§ 101, 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1, 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not applicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. Nevertheless, it is noted that an October 2012 letter from the RO provided notice of what was required to substantiate the claim. Analysis 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 Feb. 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. 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(c)(1) provides 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, 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. 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 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. 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 . . . ." However, nothing in this 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." For purposes of establishing entitlement to VA benefits, 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 under the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains needed information as to length, time, and character of service; and, (3) in the opinion of the VA, the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). When the claimant does not submit evidence of service or the evidence does not meet the requirements of this section, the VA shall request verification of service from a service department. 38 C.F.R. § 3.203(c). In February 2009, the appellant submitted a VA Form 21-4138 and a VA Form 21-4138 (CF) to apply for a one-time payment from the Filipino Veterans Equity Compensation Fund. She contended that she had active service in the Commonwealth Army and as a Recognized Guerrilla and listed her name; date and place of birth; service number, unit and date of service (reported as 107151-K with Walter Cushing Guerilla Unit from February 10, 1972, to December 10, 1978); and the name of her mother and spouse. In conjunction with the appellant's initial claim for a one-time payment from the Filipino Veterans Equity Compensation Fund, she submitted photocopies of a certificate of service from the Walter Cushing Guerillas, pledge, oath of office, and confirmation of officers and enlisted men's record with the Walter Cushing Guerillas. In December 2009, the RO contacted 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." This submission to the NPRC listed the date of entrance to active duty as February 10, 1972, and the date of separation from active duty as December 10, 1978. In a response received in January 2010, 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. Subsequent to the initial request to NPRC for verification, the appellant submitted additional evidence. This evidence included multiple buddy statements from fellow service members attesting to the appellant's service, a copy of special appointment from the General Headquarters of the Walter Cushing Guerilla, copy of a membership card from The American Legion, copies of pages from a book, and the appellant's statements as to service. In December 2010, the RO sought re-certification of the appellant's service from the NPRC based on the additional evidence. In December 2010, the NPRC responded that there was no change from the prior negative service certification. The appellant has not submitted any documents that meet the first requirement of 38 C.F.R. § 3.203(a). She has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the U.S. Armed Forces. Therefore, VA sought service department verification of whether the appellant served in the U.S. Armed Forces in the Philippines. In December 2009 and December 2010, based on the information contained in the appellant's claims forms and in the documents she submitted, the service department (via the NPRC) certified it had no record of the appellant serving as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The Board notes that certifications from the service department (via the NPRC) are binding on VA, and VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet. App. 530 (1992). If a change of service department certification is what the appellant seeks, her remedy lies with the service department and not with VA. With respect to the assertion that service department reports documenting qualifying service are not available because they have been destroyed, the responses from NPRC have not indicated that her records were part of those destroyed in the fire at that facility in 1973 or otherwise. The appellant has provided no further evidence that would warrant another request for re-certification of her service/nonservice by the service department and VA must abide by the service department's certification. See Capellan v. Peake, 539 F.3d 1737 (Fed Cir. 2008); Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Accordingly, the Board finds the appellant did not have the requisite service and is not a Veteran so as to establish eligibility for compensation from the Filipino Veterans Equity Compensation Fund. Since the law is dispositive in this matter, the claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs