Citation Nr: 1341228 Decision Date: 12/13/13 Archive Date: 12/20/13 DOCKET NO. 09-44 267 ) 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: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant and his daughter 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 May 2012 and was remanded for further development. The record reflects that the requested development has been completed and pursuant to the Board's remand directive. 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 November 2013, the appellant testified before the undersigned Veterans Law Judge at a videoconference Board hearing. A transcript of the hearing has been associated with the claims file. In addition to the paper claims file, there is a Virtual VA paperless file associated with the appellant's case. The Board has reviewed the contents of the paperless file. 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). 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. 2013); 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 June and August 2011 letters, 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. He has claimed qualifying service with the Anderson Fil-American Guerrillas and the Inf. 10th Battalion Reg I Div, a Philippine guerilla unit, from March 10, 1942 to September 27, 1945, and from May 1, 1945 to January 31, 1946. 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 October 2008, July 2010, September 2010, and October 2010, 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 photocopy of an undated AG Form No. 3, Identification Card, from the Anderson Fil-American Guerrillas, stating that it was being issued to the appellant, a Captain in the Inf. 10th Battalion Reg I Div; a photocopy of a certification from the Anderson Fil-American Guerrillas documenting that the appellant had been inducted into that organization on March 10, 1942, and served honorably until his discharge on September 27, 1945; a photocopy of a Report of Proceedings, dated March 18, 1968, from the Office of the Adjutant General, Armed Forces of the Philippines, regarding the confirmation of the appellant's guerrilla services; a photocopy of an August 1968 Curriculum Vitae prepared by the Philippine Navy showing that he enlisted in May 1945 as a Private in "B" Co 1st Bn 2nd Reg Bicol Brigade, Philippine Army and was then assigned to a number of different "military experiences" before retiring from service in the Armed Forces of the Philippines in September 1968; an extract of Special Orders Number 33 from the General Headquarters of the Armed Forces of the Philippines, dated August 1968, which shows that the appellant was being separated from the Armed Forces of the Philippines after 21 years and 27 days of service; a February 2009 certification from the Office of the Adjutant General, Armed Forces of the Philippines stating that the appellant was inducted into the Special Inf Bn (Grla Unit) on July [redacted], 1942, and was processed on September 27, 1945; a copy of the appellant's Affidavit for Philippine Army Personnel, dated in April 1946, which indicates he served in the Special Inf Bn (guerrilla unit) from July [redacted], 1942 to June 30, 1945, was attached to 158 RCT (APO 70) from July 1, 1945 to September 26, 1945, and was processed at Naga, Camarines by the Philippine Mobile Unit Team on September 27, 1945; a photocopy of the appellant's identification card as a retired enlisted personnel from the Armed Forces of the Philippines, and; photocopies of paperwork and identification cards identifying the appellant as a naturalized United States citizen. 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. Thus, while the Board is sympathetic to the appellant, 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. Finally, the Board notes that the appellant is a naturalized citizen of the United States and that documentation of veteran status from the Philippine government is sufficient to establish such status under the Immigration Act of 1990. 8 U.S.C.A. § 1440 (West 2002); Almero v. INS, 18 F.3d 757 (9th Cir. 1994). However, the Court of Appeals for the Federal Circuit has held that that this method of substantiation under The Immigration Act has no bearing on VA's process for establishing service in the U.S. Armed Forces. Soria v. Brown, 118 F. 3d 747 (Fed. Cir. 1997). Thus, VA is bound only by the service department's certification with respect to the appellant's status as a veteran of the U.S. military. 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