Florentino v. Brown

7 Vet. App. 369, 1995 U.S. Vet. App. LEXIS 63, 1995 WL 36421
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 1, 1995
DocketNo. 93-1025
StatusPublished
Cited by9 cases

This text of 7 Vet. App. 369 (Florentino v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florentino v. Brown, 7 Vet. App. 369, 1995 U.S. Vet. App. LEXIS 63, 1995 WL 36421 (Cal. 1995).

Opinion

FARLEY, Judge:

This is an appeal from a July 30, 1993, decision of the Board of Veterans’ Appeals (BVA or Board) which denied the appellant’s claim for compensation at the full dollar rate for his service-connected disabilities. Under 38 U.S.C. § 107(a), because the appellant served with Philippine forces during World War II, he is compensated “at a rate in pesos as is equivalent to $0.50 for each dollar authorized.” The appellant contends that, since he is now a U.S. citizen, § 107(a) is unconstitutional as applied to him. The Court has jurisdiction to hear this appeal pursuant to 38 U.S.C. § 7252(a). For the following reasons, the Court will affirm the Board’s decision.

I.

The appellant performed recognized guerrilla service in the Philippines from January 4, 1945, until December 3, 1945, and served in the Philippine Army from "December 4, 1945, until March 23, 1946. Record (R.) at 196. In August 1945, he suffered a gunshot wound to the right thigh. R. at 83, 229. On January 18, 1949, service connection was awarded for the injury to his right thigh and femur and for the shortening of his leg due to the gunshot wound, and a 50% rating was assigned; this was increased to 60% on March 24, 1953. Supplemental Record at 1-2. According to a December 16, 1991, Statement of the Case, the appellant “is receiving the maximum rate based on individual unem-ployability,” although it is not noted when this rating was granted. R. at 247; see also R. at 258.

On August 26, 1991, the appellant filed a “statement in support of CLAIM” with a VA [370]*370regional office (RO), in which he argued that he was entitled to disability compensation at the full dollar rate. R. at 234-37. This was answered by a letter stating that “[p]ay-ments of compensation to veterans who served with the [United States Armed Forces in the Far East] and recognized guerrillas are authorized at 0.50<t [sic] for every dollar. Your monthly compensation rate ... is correct.” R. at 239. The appellant submitted a Notice of Disagreement on November 15, 1991. R. at 241-42. On July 30, 1993, the BVA issued a decision finding that the appellant’s claim for compensation at the full dollar rate was not well grounded, and that it could not “adjudicate the constitutionality of congressional enactments as it is an administrative agency.” Maximo Florentino, BVA 93-09641, at 3 (July 30,1993) (citing Johnson v. Robison, 415 U.S. 361, 368, 94 S.Ct. 1160, 1166, 39 L.Ed.2d 389 (1974)).

II.

The BVA decided that because § 107(a) clearly applied to the appellant, and because the constitutional matter “is not within the jurisdiction of the Board,” the appellant’s claim was not “well grounded.” Florentino, BVA 93-09641, at 3. In Sabonis v. Brown, 6 Vet.App. 426, 430 (1994), this Court held that the use of the statutory term “well grounded” should be “confined to an evidentiary context” in our jurisprudence, unlike its use in other areas of law. See 38 U.S.C. § 5107(a). Thus, in this case, since “the law and not the evidence is dispositive, the ... appeal to the BVA [should have been] terminated because of the absence of legal merit or the lack of entitlement under the law.” Sabonis, 6 Vet.App. at 430 (citing Fed. R.Civ.P. 12(b)(6)). However, this imprecision in the use of a term of art is not a basis, in and of itself, for a remand.

III.

Section 107(a) of title 38 of the United States Code provides:

Service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, ... including [service in] 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, shall not be deemed to have been active military, naval, or air service for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the Armed Forces, except benefits under—
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(3) chapters 11, 13 ... and 23 of this title.
Payments under such chapters shall be made at a rate in pesos as is equivalent to $0.50 for each dollar authorized_

This case presents the question of whether § 107(a) is constitutional as applied to the appellant, a Filipino veteran who is now a U.S. citizen. Having jurisdiction to review the July 30,1993, BVA decision, this Court is empowered to interpret constitutional provisions “to the extent necessary to its decision and when presented.” 38 U.S.C. § 7261(a)(1); cf. In re Wick, 40 F.3d 367 (Fed.Cir.1994); Mayer v. Brown, 37 F.3d 618 (Fed.Cir.1994).

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. Broten, 999 F.2d 514, 517 (Fed.Cir.) (citing United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 176, 101 S.Ct. 453, 460, 66 L.Ed.2d 368 (1980)), cert. denied, — U.S. -, 114 S.Ct. 643, 126 L.Ed.2d 601 (1993); Califano v. Torres, 435 U.S. 1, 5, 98 S.Ct. 906, 908, 55 L.Ed.2d 65 (1978); Quiban v. Veterans Admin., 928 F.2d 1154, 1159-61 (D.C.Cir.1991). Section 107(a) has been held to be constitutional by the Court of Appeals for the District of Columbia Circuit, the Court of Appeals for the Federal Circuit, and by this Court. Id.; Talon, supra; Dela Pena v. Derwinski, 2 Vet.App. 80 (1992).

In Quiban, the District of Columbia Circuit articulated three factors which clearly provide a “rational basis” for the statute:

[371]*371First, United States taxes have never been imposed in the Philippines; that community then, although once subject to United States rule, has never contributed to the funding of United States veterans benefits. Second, ...

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Bluebook (online)
7 Vet. App. 369, 1995 U.S. Vet. App. LEXIS 63, 1995 WL 36421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florentino-v-brown-cavc-1995.