Citation Nr: 1341127	
Decision Date: 12/12/13    Archive Date: 12/20/13

DOCKET NO.  10-04 387A	)	DATE
	)
	)

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


THE ISSUE

Eligibility for a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.


WITNESSES AT HEARING ON APPEAL

The appellant and his daughter


ATTORNEY FOR THE BOARD

C. Fleming, Counsel



INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

The appellant and his daughter testified before the undersigned Acting Veterans Law Judge at a hearing at the Manila RO in April 2012.  A transcript of that hearing has been associated with the claims file.

The Board remanded this case in June 2012 for additional development.  The requested development has been completed, and the appeal has been returned to the Board for further appellate review.

Please note that 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 appellant does 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 requirements for eligibility to a one-time payment from the FVEC Fund are not met.  38 U.S.C.A. § 5101(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

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012), and implemented at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

The Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  As the law is dispositive in the instant claim, the VCAA is not applicable.

II.  Analysis

The appellant seeks entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund.  See American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).  Section 1002(d) of that Act defines a person eligible for such a payment as 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 case turns on whether the appellant has the requisite military service.  For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation, or burial 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 if the evidence meets 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 VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a).

When a claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c).  Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA.  38 C.F.R. § 3.203(c) (2013); Duro v. Derwinski, 2 Vet. App. 530 (1992).  Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service.  38 C.F.R. 
§ 3.203 (2013); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).

The appellant contends that he served with the Philippine Commonwealth Army and an organized guerrilla unit during World War II designated as "B Co. 1st Bn. 41st Inf. Regt. MMD ECLGA" from September 1942 to February 1946.  He submitted documents from the United States Army Forces in the Far East (USAFFE) Luzon Guerrilla Army Forces dated in September 1942, indicating that he was inducted into the guerrilla services and assigned to the MMD ECLGA in October 1943.  A similar USAFFE document dated in October 1943 shows that the appellant was called to service in the Manila Military District (MMD) of the ECLGA.  Similarly, a document from the Commonwealth of the Philippines Philippine Army reflects that the appellant served from September 1942 to February 1946 with the "B" Co. 1st Bn. (Ramsey Unit)."  A second document from the Philippine Army dated in February 1993 reflects that the appellant served in the 41st Infantry Regiment in the MMD ECLGA from June 1943 to February 1946.  A service record in January 1946 reflects that his service was identified as "civilian guerrilla."  Similarly, a document from the Army of the Philippines dated in May 1947 stated that the appellant's name was "carried in the approved roster (Guerrilla) of the B Co. 41st Infantry ECLGA."  The appellant also submitted a document from the Philippine Constabulary showing that he joined the guerrilla forces in June 1943 as a private first class with the 41st Infantry Regiment of the MMD ECLGA.  Later documents indicate that the appellant re-enlisted with the Philippine Army in December 1949 and again in December 1952.  The appellant has also submitted multiple documents from the Philippine Veterans Affairs Office confirming that the appellant served with the ECLGA during World War II and was thus entitled to both educational and hospitalization benefits.  

In addition, the appellant submitted affidavits dated in April 1947 and March 1967 in which he attested that he was inducted into the 41st Infantry Regiment in the MMD ECLGA in September 1942 and served until February 1946.  The appellant also submitted an affidavit dated in February 2010 indicating that he used two different middle names and requesting that VA research his service history using both names.  He also submitted affidavits from two fellow service members.  In two affidavits dated in January 1946, a lieutenant colonel in the Philippine Army stated that he commanded the 1st Battalion of the 41st Infantry, MMD ELCGA, and knew that the appellant had been stationed with the 41st Infantry as a platoon clerk in September 1942.  Similarly, in an affidavit dated in November 1946, the executive officer of the 41st Infantry Regiment of the MMD ECLGA stated that he personally knew the appellant and knew that he was a "recognized guerrilla" with the Philippine Army who had been assigned to the "B" Company, 1st Battalion, 41st Infantry Regiment, MMD ECLGA.  
  
The record shows that the RO first determined that the appellant's name was not listed in the Reconstructed Recognized Guerilla Roster that is maintained by the Manila RO.  Next, the RO requested a determination from the NPRC as to whether the appellant had service as a recognized guerrilla.  In April 2010, November 2011, January 2013, and February 2013, the NPRC indicated 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.  Each determination was based on a review of the information submitted by the appellant regarding the dates and nature of his service during World War II, including the multiple supporting documents discussed herein.  In particular, the NPRC was provided the documentation from the USAFFE and was instructed to search under both names used by the appellant.  Even considering this information, the responses, as discussed above, were all negative.  

The Board has carefully considered the documentation submitted by the appellant, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service.  None of these documents contain the necessary information to establish entitlement to the benefit sought, and all documentation submitted by the appellant was carefully considered by the NPRC in determining that he had no relevant service.  Although the Board acknowledges that the appellant has submitted multiple official documents and affidavits from Philippine Army officers, these documents do not establish such service in behalf of the United States Armed Forces as required by law and regulation.  As such, these documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA, including the one-time payment from the FVEC Fund.  

The Board finds that the appellant has not submitted any service document that establishes service as a recognized guerrilla with the U.S. Armed Forces.  The appellant has also submitted statements, and has testified before the undersigned Acting Veterans Law Judge, indicating that he did serve with the U.S. Armed Forces during World War II.  The Board has considered the appellant's contention; however, VA is bound by the service department's certification with respect to the appellant's status as a veteran of the U.S. military.  In this case, the service department has considered the question of the appellant's military status on several occasions, including multiple reviews of the documentation of record and discussed herein.  However, each time the NPRC considered the question of the appellant's service, it returned a negative response.  In light of the service department's certification that the appellant did not have service in the Philippine Commonwealth Army or as a recognized guerrilla with the U.S. Armed Forces, the Board finds that the preponderance of the evidence is against the claim; therefore, the claim must be denied.  Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Eligibility for a one-time payment from the FVEC Fund is denied.



____________________________________________
REBECCA N. POULSON
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs