BVA9505366 DOCKET NO. 93-09 508 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to disability compensation at the full dollar rate. ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The appellant served in the Philippine Army with the United States Army Forces, Far East (USAFFE) from December 1941 to June 1946, and had recognized guerrilla service from at least January 1945 to January 1946. He has appealed from a November 1992 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines in which it was determined that the full dollar rate of compensation that the appellant was receiving for his service connected disability was in error and that in fact, since the appellant had Philippine Army and recognized guerrilla service, he was only authorized at $0.50 for every dollar in pesos as compensation for his disability. CONTENTIONS OF APPELLANT ON APPEAL The appellant maintains that he should not be paid at the pesos rate for his compensable service-connected disability. The appellant contends that based on records that show that he had USAFFE service, he had service with the regular armed forces of the United States, and that, therefore he is entitled to disability compensation at the full dollar rate. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that by law, the appellant is not entitled to disability compensation at the full dollar rate FINDINGS OF FACT 1. The veteran had recognized military service with the USAFFE and recognized guerrilla service as verified by the service department. 2. The veteran is entitled to $0.50 for every dollar authorized, as compensation for his service-connected disabilities. CONCLUSION OF LAW The appellant is not entitled to disability compensation at the full dollar rate. 38 U.S.C.A. § 107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board has determined that the issue of entitlement to disability compensation at the full dollar rate is a matter in which the law, as opposed to the evidence, is dispositive of the issue. The United States Court of Veterans Appeals (Court) has observed that the use of the statutory term "well grounded" should be confined to matters in which the evidence is dispositive. Therefore, in cases such as this, where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law (Cf. FED R. CIV. P. 12(b)(6) ("failure to state a claim upon which relief can be granted"), as opposed to dismissing the case for failure to present a well-grounded claim. Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). Service connection was established for anxiety, evaluated at 10 percent compensable; malaria, evaluated as non-compensable; and dysentery, evaluated as non-compensable, effective from December 1982, based on the appellant's POW status. The effective date of the award was January 1983 and that the appellant was paid in full dollar amounts as he was considered a U.S. Army veteran. An administrative decision dated November 1992 is of record. The decision reflected that the appellant had been paid in full dollar amounts in error, and that due to the fact that the appellant's service was not with a regular component of the U.S. armed forces, but was in fact service with the Philippine Army including recognized guerrilla service, he should have been paid at half the dollar amount in pesos as provided for under 38 U.S.C.A. § 107. Overpayment for the period from January 1983 to January 1993 was excused from penalty, and the payments as directed under 38 U.S.C.A. § 107 were instituted thereafter. The appellant filed a notice of disagreement with the decision in January 1993. The applicable statute specifically states that service prior to 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 organized guerrilla forces, is only deemed to have been active military, naval, or air service for the purpose of conferring disability benefits under chapters 11 and 13 of Title 38. The law explicitly states that payments for service- connected diseases or disabilities, which are made to veterans who served in the organized military forces of the Government of the Commonwealth of the Philippines, shall be made at a rate in pesos which is equivalent to $0.50 for each dollar authorized. 38 U.S.C.A. § 107 (West 1991). Despite this statute, the veteran claims that he is entitled to compensation at the full dollar rate for his service-connected disability benefits. The appellant is concerned that the status of his service be conclusively determined. The Court has specifically addressed the question of what evidence the VA must rely upon in determining the status of a veteran's service. In Duro v. Derwinski, 2 Vet.App. 530 (1992), the Court held that the VA was obligated by 38 C.F.R. § 3.203 (1991) to accept only certifications from the service department for purposes of establishing whether a claimant had the requisite service for the benefit sought, where the evidence submitted by the claimant does not meet the requirements of 38 C.F.R. § 3.203(a). In this case, the service department certified in official documentation from the National Personnel Records Center in St. Louis, Missouri, that the appellant had POW status from April to August 1942, recognized guerrilla service from at least January to November 1945 and regular Philippine Army service from November 1945 to June 1946. The certification also classified the veteran in a "missing" status from April 1944 to January 1945, but determined that this period also represented recognized guerrilla service for which the veteran was entitled to pay. The appellant's service as a recognized guerrilla and his service in the USAFFE dictate that section 107(a) is applicable to him. That section does not make any exceptions; therefore, it is manifest that his claim for the full dollar disability rate lacks legal merit and must be denied. The veteran has not challenged the constitutionality of that Section 107(a), and this decision does not reach that issue, as that matter is not within the jurisdiction of the Board, following the principle that the question of the constitutionality of congressional enactments is generally beyond the jurisdiction of administrative agencies. Johnson v. Robison, 415 U.S. 361, 368, 94 S.Ct. 1160, 1166. However, the Board points out that it is well-established that "[w]hen . . .legislation [involving governmental payment of monetary benefits] is challenged on equal protection grounds as being violative of the Fifth Amendment, the rational basis standard is the appropriate standard of judicial review. " Talon v. Brown, 999 F.2d 514, 517. Under a rational basis standard section 107(a) has been held constitutional by the Court of Appeals for the District of Columbia in Quiban v. Veterans Administration, 928 F.2d 1154 (D.C. Cir 1991); the Court of Veterans Appeals in Dela Pena v. Derwinski, 2 Vet.App. 80 (1992); and the Court of Appeals for the Federal Circuit in Talon v. Brown, 999 F.2d 514 (Fed.Cir. 1993). ORDER Entitlement to disability compensation at the full dollar rate is denied. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.