Citation Nr: 1343448	
Decision Date: 12/31/13    Archive Date: 01/07/14

DOCKET NO.  13-00 920	)	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 (FVEC) Fund.


ATTORNEY FOR THE BOARD

L.M. Yasui, Counsel


INTRODUCTION

The appellant served in the Philippine military during the Second World War; however, he has no qualifying service with the United States Armed Forces.

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

In the January 2013 substantive appeal, the appellant requested a Videoconference Board hearing.  In a subsequent letter sent to the Veteran in October 2013, the RO informed the Veteran of a Board hearing scheduled in November 2013.  He failed to appear.  Accordingly, the hearing request is considered to have been withdrawn.  See 38 C.F.R. § 20.702 (2013).  In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the Virtual VA system to ensure a complete assessment of the evidence.  

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).


FINDING 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. § 501(a) (West 2002 & West Supp. 2013); American Recovery and Reinvestment Act of 2009 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

The question currently before the Board is whether the appellant has qualifying service to establish eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund.  The record includes the NPRC's numerous reports 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.  Because qualifying service and how it may be established are governed by law and regulations and the service department's certification is binding, the Board's review is limited to interpreting the pertinent law and regulations.  Where, as here, the interpretation of the law is dispositive of the appeal, neither the duty to notify nor the duty to assist provisions of the VCAA apply.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004.

Nonetheless, the Board notes that the RO provided the appellant with a copy of the December 2009 decision, the October 2012 Statement of the Case (SOC), and the July 2013 Supplemental Statement of the Case (SSOC), which included a discussion of the facts of the claim, the laws and regulations pertaining to eligibility for benefits under the Filipino Veterans Equity Compensation Fund and verification of military service, notification of the basis of the decision, and a summary of the evidence considered to reach the decision.  A February 2013 letter also provided the appellant notice of what the evidence must show to establish eligibility for benefits under the Filipino Veterans Equity Compensation Fund.

The appellant has also had a meaningful opportunity to participate in the processing of the claim.  In addition to the information the appellant provided on the February 2009 and December 2010 VA Form 21-4138, the appellant has submitted a copy of Land Bank of the Philippines passbook, copies of various identification cards, an Affidavit for Philippine Army Personnel dated January 1946, a Certificate of Discharge from the Commonwealth Army of the Philippines dated February 1946, a letter from the Philippine Veterans Affairs Office (PVAO) dated January 1966, and statements in support of the claim.  The appellant has not identified or submitted any additional pertinent evidence which should be considered.

In light of the foregoing, the Board concludes that no further notification or development of evidence is required.  No useful purpose would be served in remanding this matter for additional development.  The Board will proceed with appellate review.

Analysis of Eligibility for FVEC One-Time Payment

Under the American Recovery and Reinvestment Act of 2009, a new one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund."  American Recovery and Reinvestment Act of 2009 § 1002, Public Law No. 111-5 (enacted February 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.

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."

Section 1002 is entitled "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 enactment of the 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.

In this case, the appellant alleges that he has recognized guerilla service in the U.S. Armed Forces.  The appellant provided certain information (e.g., date and place of birth, service number, unit in which he served, dates of service, etc.) necessary for verification of his service on his application for the one-time payment from the Filipino Veterans Equity Compensation Fund.  See March 2009 and December 2010 VA Form 21-4138.  He also submitted a copy of Land Bank of the Philippines passbook, copies of various identification cards, an Affidavit for Philippine Army Personnel dated January 1946, a Certificate of Discharge from the Commonwealth Army of the Philippines dated February 1946, a letter from the Philippine Veterans Affairs Office (PVAO) dated January 1966, and statements in support of the claim.

After the information needed for service verification was submitted by the RO, the NPRC reported 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.  In fact, the NPRC repeatedly found no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces in January 2012, February 2013, June 2013, and July 2013.

Upon review of the evidentiary record, the Board notes that the appellant has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1).  Instead, documents provided merely show that the appellant had military service during the period from October 1943 to January 1946 (i.e., based on the Affidavit for Philippine Army Personnel dated January 1946) and is a veteran of the Philippine government.  These documents fail to satisfy the requirements of 38 C.F.R. §  3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department, but rather documents from the Philippine government.  As such, the documents may not be accepted 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.

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.  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 administered by VA.  The Department of Veterans Affairs is bound to follow the certifications by the service departments with jurisdiction over United States military records.  See Duro, 2 Vet App. at 532.

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.  He 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.

Because the disposition of this claim is based on the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  Moreover, because the law, rather than the facts of the case, is controlling, the provisions of 38 U.S.C.A. § 5107(b) are not for application.


ORDER

Legal entitlement to a one-time payment from the FVEC Fund is denied.



____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs