Citation Nr: 1618572	
Decision Date: 05/09/16    Archive Date: 05/19/16

DOCKET NO.  13-20 241	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines



THE ISSUE

Whether the Appellant has legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.



ATTORNEY FOR THE BOARD

J. Connolly, Counsel




INTRODUCTION

This appeal to the Board of Veterans' Appeals (Board) is from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, concluding the Appellant did not have qualifying service to be eligible for the one-time payment from the FVEC Fund.  The Board remanded this case in September 2014.

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


FINDING OF FACT

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 service requirements for eligibility for a one-time payment from the FVEC Fund have not been met.  38 U.S.C.A. § 501(a) (West 2014); American Recovery and Reinvestment Act, § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

There was a significant change in the law with the enactment of the VCAA in November 2000. The VCAA enhanced VA's duties to notify and assist claimants with claims for VA benefits, upon receipt of a complete or substantially complete application.  The VCAA was codified, as amended, at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126, and the implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Here, though, as it is the law, not the facts, that is dispositive of this appeal, the duties to notify and assist imposed by the VCAA are inapplicable to this claim.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  The VCAA does not affect matters and has no application when, as here, the disposition of the appeal is limited to statutory interpretation.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations.  Thus, the law is dispositive, and basic legal entitlement to the one-time payment from the FVEC Fund is precluded based upon the Appellant's lack of qualifying service.  Therefore, legal entitlement to the one-time payment from the FVEC Fund must be denied as a matter of law and VA has no duty to notify or assist the Appellant in this appeal because no amount of notice or assistance could help him substantiate his claim.  In Manning v. Principi, 16 Vet. App. 534, 542 (2002), the United States Court of Appeals for Veterans Claims ("the Court") explained that the VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on facts or development of facts.  See also Smith v. Gober, 14 Vet. App. 227 (2000); Sabonis v. Brown, 6 Vet. App. 426 (1994) 

FVEC Payment

The President of the United States signed the American Recovery and Reinvestment Act of 2009 on February 17, 2009, authorizing the release of a one-time, lump-sum payment to eligible World War II Philippine Veterans.  These payments are to be made through VA.  American Recovery and Reinvestment Act (ARRA) § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).  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. See ARRA § 1002(d), Pub. L. No. 111-5 (enacted February 17, 2009). 

The Appellant contends that he had military service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  In support of his claim, the Appellant submitted the following documents: identification cards; copy of his birth certificate; a Barangay Clearance from R.E.E.; an affidavit from G.T.; enlistment record and final endorsement dated September 3, 1942; affidavit for Philippine Army Personnel (Form 23) dated March 4, 1946; Certificate of Honorable Discharge from the Commonwealth Army of the Philippines, dated March 7, 1946; Application for Old Age Pension from the Philippine Veterans Affairs Office (PVAO), dated July 27, 1992;AGNR2, Certification from Armed Forces of the Philippines, dated October 12, 2005; OTAG/NRD, Certification from Armed Forces of the Philippines, dated March 11, 2010, and Joint Affidavit from M.D.C. and A.M., dated March 10, 2011 

For the purpose of establishing entitlement to VA 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 under 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 CFR 3.203(a) (2015).  The Veteran has not submitted those documents.  The Board has considered the Appellant's evidentiary submissions, but 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.  As such, these documents may not be accepted as verification of service for the purpose of determining eligibility for VA benefits, including, here, the one-time payment from the FVEC Fund.

Further, the National Personnel Records Center (NPRC) certified five times (December 2009. September 2010, December 2012, February 2013, and August 2013) that the Appellant did not have any recognized service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  However, subsequently, in a recent decision of the Court, the Court held that it could not determine whether the Department of the Army has delegated the authority to make service decisions to the National Archives and Records Administration (NARA), or its agency, the NPRC, for purposes of verifying service under 38 C.F.R. § 3.203(c).  Therefore, absent evidence of a statutorily delegated duty, the plain meaning of VA's regulation requires verification of service from the relevant service department.  See Taguba v. McDonald, 2014 WL 4199312 (August 26, 2014).  

As such, the Board remanded this case for the RO to contact the Department of the Army and request verification of the Appellant's claimed service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the United States Armed Forces.  In reply, a Memorandum from the Department of the Army dated October 15, 2015 was received.  This Memorandum stated that based on the review of the information provided and official information contained in Army records maintained by the NPRC, the Department of the Army was unable to change its previous negative service determination for the Appellant.  After reviewing all the information provided, the Department of the Army identified a claim folder for the Appellant which contained an AGO Form 23.  Since the VA Form 21-3101 also indicated the Appellant served under other names, the Department of the Army conducted a thorough search for these claim folders as well but did not locate a folder under any other name.  The one claim folder the Department of the Army located did not contain documents with variations of the Appellant's name.  The AGO Form 23 (enclosed with the Memorandum) showed the Fil-American Irregular Troops (FAIT) and Blue Eagle Brigade as the Appellant's units of assignment.  Although a listing for the Blue Eagle Brigades was not found in the archives, the Department of the Army did find the Blue Eagle Regiment.  A thorough search through the Blue Eagle Regiment rosters (enclosed with the Memorandum) did not produce a single instance of any variation of the Appellant's name.  The Department of the Army also identified a unit known as Blue Eagle Force, Bicol Brigade and the search of that roster also produced a negative result for the Appellant's name.  Without a unit roster that correlated directly to the unit listed on the AGO Form 23, the Department of the Army was unable to verify service.  Under the guidance established by the Department of the Army for the post-War recognition program, the Department of the Army was not able to accept the Certifications from Armed Forces of the Philippines, Office of the Adjutant General, as verification of service.   

The Veteran has not satisfied the requirements of 38 C.F.R. § 3.203 of official documents of the appropriate United States service department verifying service for the purpose of determining eligibility for VA benefits, including the one-time payment from the FVEC Fund.  The NPRC has repeatedly 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.  Likewise, the Department of the Army was unable to certify the claimed service.  The Board acknowledges the Appellant's arguments to the contrary, that he had the requisite service.  However, the Board is not free to ignore the certification of the NPRC and the Department of the Army.  Their verifications are binding on VA such that VA has no authority to change or amend the finding.  See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  This department is bound to follow the certifications by the service departments with jurisdiction over United States military records.  NPRC and the Department of the Army have duly considered the Appellant's application for VA benefits and, in response, certified that he had no qualifying active military service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, and the Board is bound by this certification.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department refuses to verify the claimed service, the applicant's only recourse lies within the service department, not with VA).

Because 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 be considered a Veteran for the purpose of establishing entitlement to the one-time payment from the FVEC Fund.  Accordingly, the claim is denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). 


ORDER

Entitlement to a one-time payment from the FVEC fund is denied.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs