Citation Nr: 1342810 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 11-24 673 ) 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 (FVEC) Fund. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The appellant alleges that he had recognized guerrilla in the service of the Armed Forces of the United States during World War II. This matter is before the Board of Veterans' Appeals (Board) on appeal of administrative decision issued in May 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The appellant testified before the undersigned Veterans Law Judge in February 2013. A transcript of the hearing is of record. In May 2013, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The National Personnel Records Center (NPRC), the federal agency charged to verify service for a service department, certifies 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 as required to establish eligibility for FVEC Fund benefits. 38 U.S.C.A. § 501(a) (West 2002); 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 The Veterans Claims Assistance Act of 2000 VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The VCAA does not apply in this case because there is no reasonable possibility that any further assistance would aid the appellant in substantiating the claim. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant seeks a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009) (to be codified in Title 38 of the United States Code: Veterans' Benefits). 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. The Secretary of VA is to administer the fund consistent with applicable provisions of the Title 38 of the United States Code. Under Section 1002, an eligible person is any person: (1) who served 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 (2) any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and (3) any eligible person was discharged or released from service under conditions other than dishonorable. See 38 C.F.R. § 3.40 (eligibility for VA benefits for certain Philippine service). For the purpose of establishing evidence of service, the Department of Veterans Affairs 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 the Department of Veterans Affairs 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 submitted does not meet the stated requirements, the Department of Veterans Affairs will request verification of service from the service department. 38 C.F.R. § 3.203(c). The National Personnel Records Center (NPRC) is the federal agency charged to verify service for a service department. The findings of the U.S. service department verifying a person's service are binding on VA for the purpose of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992). The appellant alleges that he served in a recognized guerilla unit of the Commonwealth Army of the Philippines that was specifically recognized by the Army Forces, Western Pacific, as being in the service of the Armed Forces of the United States. He has provided two possible periods of service, namely, from April 1944 to November 1945 and from November 1944 to September 1945. As proof of qualifying service, the appellant submitted numerous documents. He submitted a copy of Special Orders No. 269, Extract of Service dated November 13, 1945, and a copy of Transfer of Assignment from the 22nd FA BN (PA) Headquarters dated November 2, 1945. The appellant also submitted information from the Department of Finance, Bureau of the Treasury, Manila, dated in September 1968. This information shows that he received three months back pay for the period of November 1944 to September 1945. In addition, he submitted a copy of a Statement of Pay and Allowances from the Veterans Claims Settlement Staff, dated in October 1970, which showed he received pay and allowances for the period between November 1944 and July 1945. The claims file includes a February 1972 statement from the Republic of Philippines, Office of the President, Philippine Veterans Administration, which indicated that the appellant served as a World War II guerilla. The statement indicated that his name was on the Approved Revised Reconstructed guerilla roster as a "private" with the "H Co. 2nd Bn 66th Inf. USAFIP-NL." The claims file also includes certification, dated in February 1988, from a Lieutenant Colonel, Assistant Adjutant General, who indicated that the appellant's records showed service as a guerilla with the rank of private for a period of service commencing in November 1944. According to this certification, the appellant's name appeared on the Approved Revised Reconstructed "Grla" roster of the "H" Co. 66th Inf. USAFIP NL with a date of recognition of January 9, 1945, and a revised date of recognition of October 1, 1943. The appellant provided a February 1991 "APPLICATION FOR OLD AGE PENSION (VETERAN)," from the Philippine Veterans Affairs Office (PVAO). The PVAO indicated the appellant served as a World War II guerilla. His last unit of assignment was the "22nd FA BN PA" with the rank of private. His discharge date is shown as November 1945. The file also includes a copy of PVAO-4 Form, Certification of Service from the PVAO dated in August 1991. According to this certification, the appellant's name appeared on the Approved Revised Reconstructed Roster with a date of recognition of January 9, 1945, and a revised date of recognition of October 1, 1943. The appellant submitted a certificate issued by the Armed Forces of the Philippines, Office of the Adjutant General in November 2007 and February 2009. This shows that the appellant served with "H Co 66th Inf USAFIP NL" with the status of a private from January 1945 to November 1945. The certificate indicates that his name was included on the reconstructed guerilla rosters; the dates of recognition were January 1945 and October 1943. The appellant also submitted a copy of an identification card issued in March 2009 by the PVAO, which referred to him as a "World War II Veteran." In a personal statement received in May 2009, the appellant reported that he was inducted into the 11th Infantry, 2nd Battalion in 1944. He noted that he later served with the 33rd Division and was transferred to the 22nd Field Artillery, 2nd Battalion, H Company, before being "honorably discharged" in November 1945. He also provided a description of some of his service activities and experiences. In August 2009, the RO requested verification of the appellant's service using all of the aforementioned evidence. In October 2009, the NPRC reported that the appellant 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. The appellant submitted two forms, dated in February 2010 and in August 2010, from the PVAO which indicated that he was a "veteran of the Philippine Revolution/World War II" who served with the "USAFIP-NL" with the rank of private and as a "recognized guerilla." These forms reflect that his "APPLICATION FOR OLD AGE PENSION" was approved. An unidentified form also received in November 2010 revealed a different date of birth than previously noted in the records. In a November 2010 statement, the appellant requested that NPRC attempt to verify his service under the names "Mercedo" or "Mercado." In November 2010, the RO requested verification of the appellant's service using the alternate names he submitted and the alternate date of birth noted. In December 2010 NPRC reported that the appellant 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 February 2012, the RO requested verification of the appellant's service. In February 2012, the NPRC reported that the Appellant 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. The appellant presented testimony at a hearing held before the undersigned in February 2013. During the hearing, he testified that he served in the 11th Infantry, 2nd Battalion as a recognized guerilla, and reasserted that he had been attached to the 33rd Division. The Board remanded the claim in May 2013 for verification of the appellant's service, based on his assertion that he was attached to the 33rd Division as a recognized guerrilla. In August 2013, the NPRC reported that the appellant 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. Based on the evidence of record, the appellant is not legally eligible for the FVEC benefit under the American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5. The documents submitted by the appellant are not official documents of a U.S. service department, thus they fail to satisfy the requirements of 38 C.F.R. § 3.203(a) as acceptable proof of service. As the documents were not issued by a U.S. service department, the RO sought verification of service from the NPRC, the federal agency charged to verify service for a service department. The NPRC certified in October 2009, December 2010, February 2012 and in August 2013 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. The findings of the U.S. service department through the NPRC are binding on VA for the purpose of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992). The appellant has provided no further evidence or information that would warrant a request for recertification from a U.S. service department, and no further development is needed. See Sarmiento v. Brown, 7 Vet. App. 80 (1994) (recertification with evidence of erroneous spelling of name); Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (recertification when there is newly received relevant evidence since the negative certification). The appellant is not legally eligible for the FVEC Fund benefit under the American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5. As the law is dispositive, the claim must be denied because of the lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs