Citation Nr: 1244277 Decision Date: 12/31/12 Archive Date: 01/09/13 DOCKET NO. 11-07 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2010 decision by a Department of Veterans Affairs (VA) Regional Office (RO) In a July 2010 statement, the appellant indicated that he wanted VA to allow his daughter-in-law, G.R., to act as his representative in this matter when needed. In another statement since filed with VA in March 2011, the appellant indicated he wanted his daughter-in-law and/or another person he identified, R.R., to act as his representative in this matter. Although the appellant signed the March 2011 Substantive Appeal (VA Form 9), himself, in the space allotted for his signature, G.R. also signed in the space reserved for the signature of his representative. Neither the appellant, G.R., nor R.R., however, has submitted any additional evidence or argument in this matter since the submission of that VA Form 9. VA will recognize only one organization, representative, agent, or attorney at one time in the prosecution of a particular claim. 38 C.F.R. § 14.631(e)(1) (2012). Therefore, VA regulations do not permit the appellant to appoint both G.R. and R.R. to represent him in this matter. Also, under VA regulations, agents and attorneys who commence representation for a claimant before VA must file an application for accreditation with VA's Office of General Counsel (OGC), as provided in 38 C.F.R. § 14.629(b), and receive notice of accreditation before providing representation. Neither the appellant, G.R., nor R.R. has provided any information suggesting that either G.R. or R.R. is accredited to represent claimants before VA. However, an unaccredited attorney (or agent) may represent a claimant on a one-time basis pursuant to 38 C.F.R. § 14.630 (2012), provided the claimant and/or attorney (or agent) submits (1) a properly executed VA Form 21-22a "(Appointment of Attorney or Agent as Claimant's Representative") and (2) documentation signed by the claimant and the attorney (or agent) to VA indicating that he or she will not charge or be paid compensation for their services. Here, though, the record does not contain either a properly filed VA Form 21-22a or the document regarding compensation required under 38 C.F.R. § 14.630. Therefore, the Board cannot recognize either G.R. or R.R. as the appellant's representative in this matter. See 38 C.F.R. § 14.629, 14.630. Moreover, having reviewing the record, the Board finds that a remand to permit the appellant the opportunity to submit corrected paperwork allowing for the appointment of either G.R. or R.R. as a representative is unnecessary and unwarranted. VA has not recognized either G.R. or R.R. as a representative in this matter and has not shared any of the appellant's information with either individual. In addition, neither G.R. nor R.R. has filed any documents on the appellant's behalf or performed any of the actions expected of a representative, except for G.R.'s signing of the VA Form 9 in the space marked for the representative. And ultimately, the appellant's claim must be denied, regardless, because he does not have recognized active service that would confer on him Veteran status and, therefore, his claim must be denied as a matter of law. So a remand to allow the appellant opportunity to provide the proper paperwork, allowing either G.R. or R.R. to officially act as his representative, would serve no useful purpose and result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The National Personnel Records Center (NPRC) 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 United States Armed Forces. CONCLUSION OF LAW The appellant does not have recognized active military service for the purposes of obtaining the one-time payment from the FVEC Fund. 38 U.S.C.A. § 5101(a); American Recovery and Reinvestment Act, Section 1002, Pub. L. No. 111-5 (Enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, though, as it is the law, not the facts, which is dispositive of this appeal, the duties to notify and assist imposed by the VCAA are not for application in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The enactment of the VCAA does not affect matters regarding questions 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 certification of service is binding on VA, the Board's review is limited to interpreting the pertinent laws and regulations. The law therefore is dispositive of this appeal, and basic entitlement to the one-time payment from the FVEC Fund is precluded based upon the appellant's lack of qualifying service. See Sabonis, 6 Vet. App. at 426. FVEC Fund Criteria The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that the majority of those who served in the above units did not have qualifying active service for the purpose of receiving VA benefits. 38 U.S.C.A. § 107 (West 2002 & Supp. 2012). The particular benefit claimed in this case originated on February 17, 2009, with the American Recovery and Reinvestment Act to promote "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization." See Pub. L. No. 111-5, 123 Stat. 115 (2009). This legislation established the FVEC Fund, which is charged with providing one-time payments to eligible persons in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-02 (2009). An eligible person is defined as any person who served 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 dated July 26, 1941. This includes any person who served in military units such as the 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; and any person who served in the Philippine Scouts under Section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 (1945)). Additionally, the person must have been discharged or released from that service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-02 (2009). The Act further directs VA to administer the provisions of this section in a manner consistent with applicable provisions of Title 38 of the United States Code, and other provisions of law, and shall apply the definitions in 38 U.S.C.A. § 101 (West 2002 & Supp. 2012), in the administration of the provisions, except to the extent otherwise provided. Specifically, VA is authorized by statute to prescribe regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under the laws administered by VA. 38 U.S.C.A. § 501(a)(1) (West 2002 & Supp. 2012). Pursuant to that authority, regulatory guidelines have been developed governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. The guidelines provide that, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a Service Separation Form, 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). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability. 38 C.F.R. § 3.203(b). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). Findings by the service department verifying or ruling out a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997). Moreover, where the United States service department does not certify the claimant's alleged service in the Philippine Army, VA cannot consider his or her claim for Veterans' benefits based on that service. Soria v. Brown, 118 Fed. 3d 747 (Fed. Cir. 1997). Analysis The appellant contends he served as a member of a guerilla unit in the Philippine Commonwealth Army, in the service of the United States Armed Forces, during World War II from January 1944 to March 1945. In January 2010, however, the NPRC, which is a military records repository, certified that the appellant had no such service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The NPRC based its January 2010 certification on the information supplied by the appellant, including his reported name, date and place of birth, dates of purported service, parentage, service dates, and claimed unit of assignment. Subsequently, in a July 2010 statement, the appellant indicated that he might have provided the NPRC incorrect information regarding both his date of birth and his middle name on his earlier verification request. Specifically, he stated that his date of birth and middle name, registered with the Philippine government, were different from those provided to VA for service verification purposes. He also submitted a copy of his birth certificate noting he had a different middle name and date of birth than those previously provided to the NPRC. But in December 2010, in response, the NPRC again certified that he had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The NPRC based its December 2010 certification on the corrected information he had supplied, including his reported name, both reported middle names, both dates of birth he had claimed, his place of birth, dates of purported service, parentage, service dates, and claimed unit of assignment. He has submitted no other documentation adequate to refute the NPRC's certification. In a March 2011 statement, he alleged he was a deserving guerilla and that he might not have provided the full name for his unit of assignment to the NPRC previously. The December 2010 NPRC certification form, however, noted the full name of his unit of assignment. He has submitted numerous affidavits reportedly from Veterans vouching for his service as a guerilla. He also has submitted various certifications from the Philippine Veterans Affairs Office (PVAO) indicating he has deserving guerilla status for education, pension, and civil service purposes. But none of these documents meet the requirements of 38 C.F.R. § 3.203 set forth above as they were not issued by the United States service department and the PVAO maintains their own standards and regulations for determining Veteran status apart from VA. Moreover, the certifications by PVAO are based not upon official records, but on the appellant's assertions and those contained in the various affidavits he has obtained. The Board is bound by the "no service" certification by the service department. 38 C.F.R. §§ 3.40, 3.41 (2011); Duro, 2 Vet. App. at 532. Indeed, this verification is binding on VA such that VA has no authority to change or amend the finding. Duro at 532. VA is bound to follow the certifications by the service departments with jurisdiction over United States military records. NPRC has 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. If, as here, the service department refuses to verify the claimed service, the applicant's only recourse lies within the service department, not with VA. See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008). Accordingly, the Board finds that the appellant did not have recognized active service that would confer on him Veteran status, and eligibility for the one-time payment from the FVEC Fund. Therefore, this claim must be denied. ORDER The claim for one-time payment from the FVEC Fund is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs