Citation Nr: 1752833 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-21 796 ) 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 seeks to establish active duty service for VA purposes based on service in the Philippines during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 adminstrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In March 2017, the Board remanded this matter to the Agency of Original Juridiction to schedule the Veteran for a Decision Review Officer (DRO) informal hearing. Pursuant to the March 2017 Board Remand, the Veteran did not appear for the DRO hearing, which was scheduled for June 8, 2017. He did not present good cause for his failure to appear, nor did he request that the DRO hearing be rescheduled; therefore, the appeal will proceed as the hearing request is considered to have been withdrawn. 38 C.F.R. § 20.702(d) (2017). This establish substantial compliance with the March 2017 remand instructions, and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). FINDING OF FACT The National Personnel Records Center (NPRC) has certified that, during the World War II era, the appellant 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. CONCLUSION OF LAW The service requirements for eligibility to a one-time payment from the FVEC fund are not met. 38 U.S.C. § 501(a) (2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009); 38 C.F.R. § 3.203 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) sets forth VA's duty to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). 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. 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. Analysis of Eligibility for FVEC One-Time Payment 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 (February 17, 2009). If an eligible person accepts a payment from the FVEC Fund, the payment shall constitute a complete release of any claim against the United States by reason of that 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. For payment to an eligible person who served in the United States Armed Forces in the Far East during World War II, VA may make a payment from the compensation fund to a person who, during the one-year period beginning on the date of the enactment of the Act, submitted a claim to VA for benefits under the act. The application for the claim shall contain the information and evidence VA requires. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 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 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and was discharged or released from service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 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); 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 with the relevant service department, not with VA. Soria, 118 F.3d at 747. 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 at 747. In Tagupa v. McDonald, 27 Vet. App. 95 (2014), the United States Court of Appeals for Veterans Claims (Court) held that the plain meaning of 38 C.F.R. § 3.203(c) requires verification of service from the proper service department, which would be the Department of the Army, as opposed to the National Personnel Records Center (NPRC). The Court took judicial notice of a Memorandum of Agreement between the Department of the Army and the National Archives and Records Administration (NARA) that purported to transfer "responsibility for providing reference services on the collection of Philippine Army files and archives buildings" to NARA indefinitely, and determined that it was unclear whether the agreement assigned NARA the authority to make administrative determinations verifying service, or the duty to act simply as a reference librarian. The Court found that the ambiguity in the agreement precluded it from finding that the Department of the Army delegated its duty to make administrative determinations verifying service to NARA (and by implication, its agency, the NPRC). Subsequently, however, the matter was resolved outside of litigation. In January 2016, the Department of the Army and NARA signed a new memorandum of agreement which delegated responsibility of verifying military service to the NPRC. In this matter, the appellant filed his original FVEC application in March 2009 and indicated that he had service as a recognized guerilla in "Vinzon's Division, T[u]rko's Command" from January 1942 to May 1945. Responding to the RO's request for confirmation of service, the NPRC indicated in September 2010 and June 2012, 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 an August 2015 letter to the Department of the Army, the NPRC indicated that the appellant was not listed on the roster for the unit "Vinzon's Division, Turko's Command." Again, the NPRC concluded that, "[u]nder the guidance established by the Department of Army for the post-War recognition program, we are not able to accept affidavits to verify service." In view of the above, all necessary and available development of the appeal has been completed, to include verification with the appropriate agency for the purpose of service verification. The NPRC has repeatedly considered the appellant's application for VA benefits based on service in the Philippines, and has consistently certified that the appellant had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. The Board 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). During the course of the appeal, the appellant has submitted documentation, such as affidavits, purporting to support his claimed service in the recognized guerillas, which has been properly considered. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). However, none of the submitted documentation and lay evidence qualifies as acceptable proof of service. 38 C.F.R. § 3.203 (2017). That additional evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought. Therefore, the evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including a one-time payment from the FVEC Fund. The Board concludes that the appellant does not meet the requisite legal requirements for obtaining a one-time payment from the FVEC Fund, based on service in the Philippines. Therefore, the appeal must be denied. In reaching this conclusion, the Board does not question the sincerity of the appellant's belief that he is entitled to VA benefits, specifically in the form of payment from the FVEC Fund. This notwithstanding, the Board is without authority to grant the claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C. § 7104 (2012); Harvey v. Brown, 6 Vet. App. 416 (1994). ORDER Legal entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs