Citation Nr: 1613299	
Decision Date: 04/01/16    Archive Date: 04/13/16

DOCKET NO.  10-47 305A	)	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.


ATTORNEY FOR THE BOARD

D.S. Lee, Counsel


INTRODUCTION

The appellant contends that he served in the service of the United States Armed Forces during World War II as a member of the Philippine Commonwealth Army, to include the recognized guerillas.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  The appellant has perfected a timely appeal of that decision.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

The service department has certified that 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 during World War II.


CONCLUSION OF LAW

The criteria for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund are not met.  38 U.S.C.A. § 501(a) (West 2014); American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

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. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

The question before the Board is whether the appellant had qualifying service to establish eligibility to a one-time payment of benefits from the Filipino Veterans Equity Compensation Fund.  The record includes documentation of the service department's efforts to verify the appellant's purported service.  Because the qualifications for the benefit being sought and the process of establishing qualifying service is governed by laws and regulations, and, because the service department's certification is binding, the Board's review here is limited to interpreting the pertinent laws and regulations.

In instances where the interpretation of the law is dispositive of the appeal, as in this case, neither the duty to notify nor the duty to assist provisions of the VCAA is applicable.  De la Cruz v. Principi, 15 Vet. App. 143, 149 (2001).

II.  Analysis

Under the American Recovery and Reinvestment Act (Act), 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 § 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.

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 (c)(1) of the Act 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 the enactment of this 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.  Here, a timely application for benefits was received from the appellant in February 2009.
 
Section 1002 (d) of the Act 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.

Here, the appellant alleges in his claims submissions that he had service as a member of "Vera's Tayabas Guerillas" from August 1942 through March 1946.  In his substantive appeal, he asserts further that the aforementioned guerilla unit was associated with the Philippine Commonwealth Army and was under the supervision of the United States Armed Forces.  He states that he received an honorable discharge from that unit and has provided a copy of a Certificate of Relief from Active Duty issued by the Government for the Commonwealth of the Philippines.    The essential question involved in this case then is whether the appellant had the requisite military service to be eligible for payment from the Filipino Veterans Equity Compensation Fund.

The record shows that the RO initially contacted the service department in November 2009 to corroborate the appellant's purported guerilla service, based on information provided in his initial application.  Such information consisted of the name of the Veteran's guerilla unit, purported dates of service, and personal identifying information.  In a response provided later that month, the service department notified the RO that the Veteran did not have any recorded service as a member of the Philippine Commonwealth Army, including the recognized guerillas.

Upon receipt of the Veteran's Philippine government-issued Certificate of Relief from Active Duty, in May 2015, the RO forwarded that document to the service department as part of renewed efforts to corroborate the Veteran's reported service.  In an October 2015 memorandum, the service department notified the RO that, despite precise unit information contained on the submitted document, the appellant's name was not listed on that unit's roster in the service department records.  Accordingly, the service department noted, it is unable to change the previous negative service determination for the appellant.

Under the regulations, for the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial benefits, 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; (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. 38 C.F.R. § 3.203(a).

In this case, the Certificate of Relief from Active Duty provided by the appellant was not issued by the appropriate United States service department but rather, was issued by the Philippine government.  Thus, that document does not meet the conditions under 38 C.F.R. § 3.203(a)(1) and cannot be 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.

Notwithstanding the above, in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit held that, in the context of a Dependency and Indemnity Compensation claim, where service department certification of 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 held further in Capellan that failure to request service department review of additional or new documents or evidence provided by an appellant concerning purported active service, even after an initial service department certification was already made, constitutes a violation of VA's duty to assist.  See Capellan, 539 F.3d at 1380-81.  The Federal Circuit held further 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.  

The holding in Capellan is equally applicable to the appellant's claim.  Mindful of the same, the Board notes that all information and evidence received from the appellant have been provided in two separate requests for verification of the appellant's service made to the service department.  As noted above, negative responses to both requests were received and no new or additional information or documentation has been received.  Overall, the Board finds that the assistance requirements set forth in Capellan and in applicable regulations have been discharged properly.  Tagupa v. McDonald, 27 Vet. App. 95 (2014); Capellan, 539 F.3d 1373.

Given the applicable statutory and regulatory provisions recited above and the facts of this case, the Board finds that the appellant does not meet the basic eligibility requirements for a one-time payment from the Filipino Veterans Equity Compensation Fund.  As the law is dispositive, the claim must be denied because of the lack of legal entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994).


ORDER

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



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs