Citation Nr: 1342871 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 11-16 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) fund. WITNESSES AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) following an appeal of a June 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In December 2009, after the claimant filed his claim in February 2009 but prior to the RO's denial of the claim, the claimant died. In January 2010, the claimant's surviving spouse requested that she be substituted and that the claim be continued in her name. The Board notes that under the applicable law in this case, if an eligible person who has filed a claim for the FVEC benefit dies before payment is made, the payment shall be made instead to the surviving spouse, if any, of the eligible person. American Recovery and Reinvestment Act § 1002(c)(2), Pub. L. No. 111-5 (Feb. 17, 2009). FINDING OF FACT The National Personnel Records Center (NPRC) has certified that the deceased claimant 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 basic eligibility for a one-time payment from the FVEC Fund are not met. 38 U.S.C.A. § 501(a) (West 2002); America Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009); 38 C.F.R. § 3.203 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). 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 (2001). As the law is dispositive in this claim, the duties to notify and assist do not apply. Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009). For eligible persons who accept a payment from the FVEC Fund, the payment shall constitute a complete release of any claim against the United States by reason of such service. However, nothing in the Act prohibits 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 the Act. American Recovery and Reinvestment Act § 1002(h), Pub. L. No. 111-5 (Feb. 17, 2009). VA 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 the Act, submitted to VA a claim for benefits under the Act. The application for the claim shall contain the information and evidence VA requires. 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. American Recovery and Reinvestment Act § 1002(c)(2), Pub. L. No. 111-5 (Feb. 17, 2009). An eligible person is any person who 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 a 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and was discharged or released from that service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002(d), Pub. L. No. 111-5 (Feb. 17, 2009). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). 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 and not with VA. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203; Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). By way of history, the deceased had submitted a claim for VA disability benefits to the Manila RO in January 1971. He reported having served in the 1st Tarlac Regiment. The RO submitted that information to the (NPRC). In a March 1971 response, the NPRC indicated that the claimant had no qualifying service in the Philippine Commonwealth Army or recognized guerilla service. Thereafter, the deceased filed a claim for a one-time payment from the FVEC fund as a result of recognized guerilla service in a claim dated in February 2009. He identified his unit as the 1st Tarlac Regiment with service from October 1944 to May 1946. At that time, he submitted a statement from the Republic of Philippines Department of National Defense which indicates that the claimant was a Veteran of World War II/Philippines Revolution who served with the "STMO." He also submitted an Affidavit for Philippine Army Personnel that indicates that he served with the Medical Detachment of the 1st Tarlac Regiment. He also submitted a certificate from the Commonwealth of the Philippines Army which indicates that he was inducted into the Medical Detachment, First Tarlac Regiment in October1944 and was honorably discharged in May 1946. Finally, he submitted a Certification from the General Headquarters of the Armed Forces of the Philippines which indicates that he enlisted as a guerilla with the Medical Detachment of the Tarlac Regiment in October 1944. The claimant died in December 2009. Following his death and subsequent acceptance of his surviving spouse to continue with prosecution of his claim on appeal, the RO submitted a request for verification of the Veteran's service in order to determine whether there was any change in the prior negative certification, obtained in March 1971, which noted that the claimant had had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.. In a response dated in September 2010, the NPRC reported that there was no change from the prior negative certification. In June 2010, the claimant's surviving spouse was notified by the RO that eligibility for the benefit was not established. The surviving spouse, through her son helping her with interpretation, testified in April 2012 that the Veteran had service at Linbong Island and served with both the Japanese and American Armies. The deceased and his surviving spouse submitted statements and documentation pertaining to his military service. However, none of that documentation or lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203. That evidence was not issued by a United States service department nor does it contain the necessary information to establish entitlement to the benefit sought. Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the FVEC Fund. The NPRC has duly considered the application for the FVEC benefit and certified that the deceased 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 Board emphasizes that it is bound by that certification. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA). Therefore, the Board finds that the deceased did not meet the basic eligibility requirements for a one-time payment from the FVEC Fund. There is unfortunately no legal basis on which the surviving spouse is entitled to one-time payment from the FVEC Fund. As the law, and not the evidence, is dispositive in this case, the claim on appeal must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The claim for a one-time payment from the FVEC Fund is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs