Citation Nr: 18159816 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 11-25 314 DATE: December 20, 2018 ORDER Whether the appellant is a Veteran for the purpose of establishing entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund is denied. FINDING OF FACT The National Personnel Records Center (NPRC), through its delegated authority from the Department of the Army, 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 U.S. Armed Forces during World War II. CONCLUSION OF LAW The appellant does not have the requisite service to entitle her to payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C. §§ 101, 501(a); 38 C.F.R. § 3.203; American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant asserts she served as a member of the Philippine Commonwealth Army, to include recognized guerrilla groups, in the service of the United States Armed Forces. The Board denied the appellant’s claim in June 2013. The appellant thereupon appealed pro se to the United States Court of Appeals for Veterans Claims (Court). While the case was pending the Court issued a decision in Tagupa v. McDonald, 27 Vet. App. 95 (2014) holding that a statement of “no qualifying service” from the National Personnel Records Center (NPRC) is not sufficient, and that VA must seek verification from the United States Army. In February 2015 the Court vacated the Board’s decision and returned the case to the Board for further development in light of Tagupa. In October 2015 and October 2016, the Board remanded the case to the RO for development required by the Court. Whether the appellant is a Veteran for the purpose of establishing entitlement to a one-time payment from the FVEC Fund 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). Section 1002 addresses 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 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. 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 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 cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department’s decision on such matters is conclusive and binding on the VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies their service. Soria,118 F.3d at 749. In Tagupa v. McDonald, 27 Vet. App. 95 (2014), the Court found that verification of service directly from the Department of the Army was required, in the absence of evidence of delegation to NPRC as an agency of National Archives and Records Administration (NARA), of the service department’s authority to verify the nature of the appellant’s service. In January 2016, the Department of the Army and NARA entered into a Memorandum of Understanding whereby the Department of the Army transferred to NARA the responsibility to provide reference services for the Philippine Army files. Therefore, this Memorandum of Understanding has resulted in a verification from NPRC/NARA being a verification from the Department of the Army. NPRC certified in December 2009, March 2013, and February 2016 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. VA is bound by that certification. The Board has carefully considered the documentation submitted by the appellant; however, it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The photocopies of a General Order dated in April 1942, a Fil-American Irregular Troops Information Sheet, and an Anderson Fil-American Guerrillas identification card submitted by the appellant were not issued by the service department, nor do they contain the necessary information to establish entitlement to the benefit sought. The documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA, including the one-time payment from the FVEC Fund. In addition, NPRC has considered the information contained in that documentation and nonetheless 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. Again, the Board is bound by this certification. See Capellan v. Peake, 539 F.3d 1373, 1376 (Fed. Cir. 2008) (noting that “if the United States service department refuses to verify the applicant’s claimed service, the applicant’s only recourse lies within the relevant service department, not the VA”). 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 NPRC has certified that she had no qualifying service. 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). As such, the basic eligibility criteria for establishing entitlement to the one-time payment from the FVEC Fund have not been met, and the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where law and not evidence is dispositive, a claim should be denied or an appeal terminated because of lack of legal merit or lack of entitlement under the law). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke