Citation Nr: 1103889 Decision Date: 01/31/11 Archive Date: 02/08/11 DOCKET NO. 10-27 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant is a veteran for the purpose of establishing entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The claimant/appellant alleges he is a deserving guerrilla veteran of World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decisional letter issued by the above Department of Veterans Affairs (VA) Regional Office (RO) in which the appellant's claim seeking compensation from the Filipino Veterans Equity Compensation Fund was denied. The question of "veteran" status of the person seeking VA benefits is a threshold requirement for establishing entitlement to such benefits. Therefore, the issue on appeal before the Board is as reflected on the title page. In October 2010, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. In connection with that hearing, the appellant submitted evidence directly to the Board. This evidence consisted of a list of names said to be taken from the Guerrilla Master List, including the appellant's name, and documents said to be from the National Archive with a roster of Company C of the Luzon Guerrilla Army Forces (LGAF) 1st Regiment, 1st Battalion, including the appellant's name. However, the appellant indicated during the videoconference hearing that he did not want these materials sent back to the RO; the oral statement, when transcribed, became a "writing." Tomlin v. Brown, 5 Vet. App. 355 (1993). As such, there exists a written waiver of RO consideration of the additional evidence. See 38 C.F.R. §§ 19.37, 20.1304 (2010). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The National Personnel Records Center (NPRC) 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. 2. U.S. Army documents dated in 1945, 1947, and 1948 show that the 1st Battalion, 1st Regiment, Luzon Guerrilla Army Forces was a recognized guerrilla unit and that the appellant was a member of that unit with recognized service in July 1945. CONCLUSION OF LAW The appellant is a Veteran under applicable United States law, and is eligible for one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 107 (West 2002 & Supp. 2010); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed The appellant contends he is a guerrilla veteran of World War II and that he served with the Luzon Guerrilla Army Forces (LGAF) from July 1943 to December 1945. In his March 2009 application for one-time payment from the Filipino Veterans Equity Compensation Fund, he listed his full name and provided his birthplace and date of birth, his dates of service and the unit in which he served. He also provided the names of his spouse, father, and mother. The appellant testified during his October 2010 videoconference hearing that Commonwealth of the Philippines Armed Forces documents demonstrate that he was on the roster of a recognized guerrilla unit from 1943 to 1945. He said that his commanding officer was an American Army officer named [redacted]. He also identified his unit as C Company of the 1st Battalion, 1st Regiment, Luzon Guerrilla Army Forces. 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 Feb. 17, 2009). Payments for eligible persons will be either in the amount of $9,000 for non-United States citizens or $15,000 for United States citizens. 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--(1) 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. For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . ." However, nothing in this act "prohibit[s] 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 this Act." For purposes of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department under 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 the VA, the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). When the claimant does not submit evidence of service or the evidence does not meet the requirements of this section, the VA shall request verification of service from a service department. 38 C.F.R. § 3.203(c). The appellant has submitted a copy of an April 1989 Philippine Veterans Affairs Office Form PVAO-4 that indicates he was a veteran of World War II who served with C Company of the 1st Battalion 1st Regiment Luzon Guerrilla Army Forces (LGAF) with an ASN of [redacted], a date of recognition of January 20, 1945, and a revised date of recognition of May 20, 1942. The evidence of record includes a Philippine Veterans Affairs Office Form PVAO 2.6(2) dated in October 1980, that indicates the appellant's unit and that he was carried in the Revised Reconstructed Guerrilla Roster of March 1948. Documents dated in February 1973 also indicate that the appellant was assigned to Squadron 269 of the 1st Battalion 1st Regiment LGAF. These documents did not originate from the U.S. Army. Therefore, VA sought service department verification as to whether the appellant served in the U.S. Armed Forces in the Philippines (and specifically whether he has had guerrilla service as alleged). In the request, the RO noted that the appellant's name was on the Reconstructed Recognized Guerilla Roster maintained in its office. In December 2009, the service department (via the NPRC) in a stamped endorsement certified that it had no record of the appellant serving as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. This certification is generally binding on VA, and VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet. App. 530 (1992). In December 2010, the appellant submitted several U.S. Army documents that he obtained from the National Archives and Records Administration. An October 1945 endorsement by the General Headquarters, United States Army Forces, Pacific, signed by a U.S. Army Assistant Adjutant General, forwarded a list of names of individuals and dates of recognition. The list was not included but the text noted that the 1st Regiment PA - LGAF was a recognized guerilla unit. Another letter dated in July 1947 from the Office of the Assistant Chief of Staff, G-3, Headquarters, Philippines Ryukyus Command (a U.S. Army command) indicated that 1st Battalion, 1st Regiment, LGAF continued to be a recognized unit. In a May 1948 report entitled "Guerrilla Unit Designation" from the same U.S. Army command, signed by the Deputy Commander, a U.S. Army general officer, the 1st Regiment LGAF was again noted as a recognized unit. The report contained a supplementary list of soldiers from Company C, 1st Battalion, 1st Regiment, LGAF that included the name of the appellant with a date of recognition of July 1, 1945. This unit continues to appear on the NARA internet site as among those Philippine Army units that performed recognized guerrilla service. See www.archives.gov/research/arc/topics/philippine/guerilla-list- 2.html (last visited Jan.27, 2011) In this case, the Board is presented with conflicting information from the applicable service department. The National Personnel Records Center (NRPC) provided a stamped response that the appellant had no service in the Philippine Army or recognized guerrillas in service of the U.S. Army. However, the file now contains clear evidence from the U.S. Army that the 1st Battalion, 1st Regiment, LGAF was a recognized guerrilla unit in service to the U.S. Army and that the appellant was a member of that unit with recognition since July 1, 1945. The Board concludes that the U.S. Army documents obtained from NARA were issued by the service department, contain needed information as to length, time, and character of service; and are genuine and the information contained in it is accurate. The Board places greater probative weight on these service documents as they specifically identify the appellant and his unit and meet the requirements of 38 C.F.R. § 3.203(a). There is no indication that any U.S. Army determinations made in 1945-48 have been revoked. The Board places less probative weight on the stamped response from NRPC that reported a negative search. ORDER Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is granted, subject to the legal criteria governing the payment of monetary benefits. ____________________________________________ J. W. FRANCIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs