Citation Nr: 1416046	
Decision Date: 04/10/14    Archive Date: 04/24/14

DOCKET NO.  13-17 307	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

G. Jackson, Counsel





INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) from a November 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. In that decision, the RO denied the Veteran's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund.

In January 2014, the Veteran testified in a hearing before the undersigned Veterans Law Judge (VLJ) at the RO, a transcript of the hearing is of record.

A review of the appellant's Virtual VA electronic claims file reveals no additional records.

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 appellant did not have active military, naval, or air service, and is not an individual or a member of a group considered to have performed active military, naval, or air service. The appellant has no recognized service.


CONCLUSION OF LAW

The appellant does not have status as a veteran for purposes of his claim for a one-time payment from the Filipino Veterans Equity Compensation Fund, and therefore does not meet the requirements of basic eligibility for these VA benefits. 38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2013).




REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.10, 3.156(a), 3.159, 3.326(a) (2013).

In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232   (2000), aff'd, 281 F.3d 1384   (Fed. Cir. 2002), cert. denied, 537 U.S. 821   (2002). See also 38 C.F.R. § 3.159(b)(3)(ii)  (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3)  (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). This is such a case. As discussed below, the facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to veteran status. The VCAA is therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132   (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149   (2001); see also VAOPGCPREC 5-2004 (June 23, 2004).

To the extent that VCAA is applicable, there has been compliance. Numerous attempts to verify service have been made. In addition, the appellant is aware that he could submit evidence and in fact did submit evidence.

The VLJ, at the Veteran's January 2014 hearing, clarified the issue identified potential evidentiary defects and inquired as to the existence of additional evidence. The actions of the VLJ supplement VCAA and complies with 38 C.F.R. § 3.103.   

Analysis

In order to be eligible for benefits administered by the VA, the evidence must establish that the individual seeking benefits is a veteran. The term "veteran" is defined in 38 U.S.C.A. § 101(2)  as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.

38 U.S.C.A. § 107(a)  provides that service 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, will not be deemed to have been active military, naval, or air service except for specified benefits including disability compensation benefits authorized by chapter 11, title 38, United States Code. 38 U.S.C.A. § 107(a). Under 38 C.F.R. § 3.40, certain service with the Commonwealth Army of the Philippines, with the Philippine Scouts, and guerilla service is included for VA benefits purposes. These include service of persons enlisted under section 14, Public Law 190, 79th Congress (Act of October 6, 1945).

Under 38 C.F.R. § 3.203(a) , 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. A copy of an original document is acceptable if the copy is issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; and (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.

When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a), VA is required to request verification of service from the service department. See 38 C.F.R. § 3.203(c).

Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and VA has no authority to amend or change their decision. The Court has held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon the VA. See Spence v. West, 13 Vet. App. 376, 380   (2000); Venturella v. Gober, 11 Vet. App. 340, 341   (1997); Cahall v. Brown, 7 Vet. App. 232, 237   (1994); Duro v. Derwinski, 2 Vet. App. 530, 532   (1992).

Under the American Recovery and Reinvestment Act, 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 § 1002, Pub. L. 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.

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. Section 1002(j)(2) of the law also provides that VA will administer its provisions in a manner consistent with VA law including the definitions in 38 U.S.C.A. § 101 except to the extent otherwise provided in the statute.

The above summaries of the law and regulations as to what service constitutes active service for purposes of establishing veteran status reflect that, in order to qualify for compensation under the Filipino Veterans Equity Compensation Fund, a claimant must meet requirements that are included in the requirements under the law and regulations in effect prior to passage of this law. Thus, in order to show entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund, a claimant must satisfy the criteria required for establishing basic eligibility for legal entitlement to VA benefits.

By way of reference, in previous appeals, as proof of qualifying service, the Appellant submitted a Certification from the Philippine Government attesting that he served in the 3rd Squadron, 2nd Prov. Tarlac Regiment, ECLGA (F-23) between October 1943 and January 1946, a copy of a Certificate of Discharge from the Army of the Philippines, showing that he served in F Company, 2nd Battalion, 1st Pangasinan Regiment and was discharged in January 1946, and various documents which show that he is recognized as a veteran by the Philippine Government.  

Additionally, he testified that he was a member of the recognized guerillas and submitted the affidavit of a witness who stated that he served with the Appellant in F Company, 2nd Battalion, 1st Pangasinan Regiment, ECLGA.  

None of the documents submitted by the Appellant was issued by a U.S. service department. Accordingly, the RO relied on verification of service from the NPRC, which in November 1972 and again in 2004, certified that the Appellant had no service as a member of the Philippine Commonwealth Army, including in the recognized guerilla forces, in the service of the United State Armed Forces.  

In previous appeals for VA benefits in 1972 and in 2004, the Appellant had provided two different service numbers; all other information remained the same.  Both service numbers have been submitted to the NPRC and both elicited a negative response as to qualifying service.  

The Appellant did not submit 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).  The Philippine Army and Philippine Government documents submitted, as well as the Appellant's testimony and the affidavit of his comrade, fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as the records are not official documents of the appropriate United States service department.  As such, the documents were not accepted by 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.

Thus, in an August 2010 decision, the Board found the record did not show that the appellant had the required service as a member of the Philippine Commonwealth Army, including in the recognized guerrilla forces, in the service of the United States Armed Forces. As such, the Appellant was not legally entitled to Filipino Veterans Equity Compensation Fund benefits.  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203(c).  

In the instant case, the appellant again applied for benefits under the Filipino Veterans Equity Compensation Fund.  He submitted an "Affidavit for Philippine Army Personnel" attesting that he served in "C" Company 1st Prov Bn 2nd Prang Regiment with dates of service and duties performed.  He also re-submitted an affidavit of a witness who stated that he served with the Appellant in F Company, 2nd Battalion, 1st Pangasinan Regiment, ECLGA  Further, he submitted a document from the Armed Forces of the Philippines indicating that he was awarded the Philippine Liberation Medal, Asiatic-Pacific Campaign Medal, World War II Victory Medal and the Philippine Republic Presidential Unit Citation Badge. Finally, he submitted a statement reasserting that he served in the 3rd Squadron, 2nd Prov. Tarlac Regiment, ECLGA (F-23) between October 1943 and January 1946.

As the above noted documents did not include a Department of Defense Form DD-214, Armed Forces of the United States Report of Transfer or Discharge, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a) , the RO requested re-verification of the appellant's service from the National Personnel Records Center (NPRC). The NPRC reported in September 2012, November 2012 and March 2013 that no change was warranted in prior negative determination (i.e., the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces).

This finding of the service department is binding and conclusive upon the Board. Spence, 13 Vet. App. at 380; Venturella, 11 Vet. App. at 341; Cahall, 7 Vet. App. at 237; Duro, 2 Vet. App. at 532. The Board therefore finds that the appellant did not have the requisite service to qualify for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.

In Capellan v. Peake, 539 F.3d 1373   (Fed. Cir. 2008), the Federal Circuit held that where service department certification of an appellant's active service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department. The Federal Circuit also held that it was a violation of VA's duty to assist not to request service department review of additional or new documents or evidence provided by an appellant concerning an appellant's active service after the initial service department certification. Id. at 1380-81. The Federal Circuit further held that "the correct interpretation of the governing statues and regulations requires that a claimant's new evidence be submitted and considered in connection with a request for 'verification of service from the service department' pursuant to 38 C.F.R. § 3.203(c) ." Id.  In this case, when the appellant submitted additional documents relating to the nature of his service, the RO requested verification of his service from the NPRC. The RO thus complied with its duty to assist pursuant to Capellan.

For the foregoing reasons, the appellant had no qualifying service, the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund have not been met, and the claim must be denied. Because VA benefits are not authorized as a matter of law in this case, the benefit of the doubt is not applicable. See Sabonis v. Principi, 6 Vet.App. 426, 429-30   (1994) (where law and not evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under the law).


ORDER

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs