Citation Nr: 1205028	
Decision Date: 02/09/12    Archive Date: 02/23/12

DOCKET NO.  10-39 494	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 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.



ATTORNEY FOR THE BOARD

A. Ishizawar, Counsel








INTRODUCTION

The claimant/appellant alleges he had recognized guerrilla service with the United States Armed Forces of the Far East (USAFFE) during World War II.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decisional letter by the Manila RO that denied his claim seeking compensation from the Filipino Veterans Equity Compensation Fund.  Because veteran status of the person seeking benefits is a threshold requirement for establishing entitlement to such benefit, that is the matter before the Board.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The service department 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 is not a veteran, and is not 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 (2011).







REASONS AND BASES FOR FINDING AND CONCLUSION

A. Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In Palor v. Nicholson, 21 Vet. App. 325 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, in claims where it is necessary to first establish veteran status, proper VCAA notice must be tailored to also inform claimants of the information or evidence necessary to prove the element of veteran status, what information the appellant is responsible for providing, and what information VA will seek to obtain concerning that element.  

A close review of the claims file found that the appellant was not advised of VA's duties to notify and assist in the development of his claim prior to the initial adjudication of this matter.  However, the Board finds that he is not prejudiced by such notice defect.  In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court reversed the case of Sanders v. Nicholson, 487 F.3d 881 (2007), which had held that any error in VCAA notice should be presumed prejudicial and that VA must always bear the burden of proving that such an error did not cause harm.  In reversing Sanders, the Supreme Court in essence held that - except for cases in which VA has failed to inform the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, and determinations on the issue of harmless error should be made on a case-by-case basis.  Shinseki, 129 S. Ct. at 1704-06.  The appellant has not alleged that he was prejudiced because he did not receive timely notice of what was needed to substantiate his claim.  The record reflects that based on information he provided in association with his February 2009 and June 2009 claims for benefits, the RO sought service department verification of his service, and based on service department certification that he did not have qualifying service, determined he is ineligible for VA benefits as a matter of law.  When an appellant is ineligible for VA benefits as a matter of law based on the service department's refusal to certify the appellant's service, he is not prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status.  See Palor, 21 Vet. App. at 332-33 ("given the binding nature of the U.S. service department's certification . . . a remand for further development could not possibly change the outcome of the decision").

The RO sought certification of the appellant's military service and advised him of what documents he could submit to assist in the matter.  There is no indication that information submitted by VA to the service department for the purposes of certifying his service was erroneous or incomplete.  The appellant has not identified or submitted any further evidence suggesting that re-certification of his service/ nonservice is necessary.  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim.

B. Factual Background

In February 2009, the appellant submitted a VA Form 21-4138 to apply for a one-time payment from the Filipino Veterans Equity Compensation Fund.  He contended that he had active service in a Recognized Guerrilla, and listed his name as [redacted], Sr.; his date of birth as September [redacted], 1923; and his place of birth as Toboso, Negros Occidental.  He also provided the names of his spouse, father, and mother.  He did not provide his service number, the unit in which he served, or the dates of his service.  In June 2009, the appellant submitted another application for a one-time payment from the Filipino Veterans Equity Compensation Fund and provided additional details; specifically, he indicated that he served in the "Guerilla (DG)" from 1942 to 1945; he again did not provide his service number.

In conjunction with the appellant's claims for one-time payment from the Filipino Veterans Equity Compensation Fund, he also submitted the following documents:

* A photocopy of the appellant's Republic of the Philippines Office of Senior Citizens Affairs identification card, Voter's identification card, and Philippine Veterans Bank passbook.

* A photocopy of the appellant's July 2001 Application for Old Age Pension (Veteran) from the Philippine Veterans Affairs Office (PVAO), wherein he indicated that he served in World War II as a guerrilla and that his major service (and last unit of assignment) was in the BN. 72nd Div. 7th MD.

* A photocopy of the appellant's July 2001 PVAO Identity Sheet, wherein he indicated that he served in the BN. 72nd Div. 7th MD - Transportation.

* A December 2001 letter from the PVAO advising the appellant that his claim for Old Age Pension had been approved.  

* A photocopy of the appellant's undated Veteran Application Form for Confirmation of Military Service of WWII Veteran, wherein he indicated that the name of his military unit/organization was BN. 72nd Div. 7th PTD. 

* An April 2003 letter from the PVAO advising the appellant that his claim with OAF(MSB) had been approved.

* A January 2004 determination from the PVAO which certifies that according to the records available in their office, the appellant was "a veteran of World War II/Philippine Revolution."  Such determination was based on his claim for old age pension that was approved in February 2003.  This determination does not provide the appellant's organization/unit in service, or any other similar details such as his rank or dates of recognition.

* A photocopy of the appellant's Confirmation of Military Service certificate.  This certificate does not identify the units/organizations in which he served during World War II, or his dates of service.

* A photocopy of the appellant's 2009 Survey Form for PVAO Pensioner.

In November 2009, the RO submitted the appellant's name, date of birth, place of birth, dates of service (April 10, 1942 to June 30, 1946), and the names of his parents and spouse to the National Personnel Records Center (NPRC) and requested that they furnish any and all records that they might have for the appellant.  The request noted that a Form 23 was not available for review, that the appellant served in the Guerrillas, and that his name was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by their office.  In December 2009, the 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.

In January 2010, the appellant submitted another copy of the January 2004 determination from the PVAO which certified he was "a veteran of World War II/Philippine Revolution."  He also submitted a copy of a form that he had previously submitted to the PVAO Pensioners ID System Office.  This form does not contain any information regarding appellant's service other than to note that he is a World War II Veteran.

In October 2010, the RO sought re-certification of the appellant's service from the NPRC.  The same information that was provided to the NPRC in November 2009 was again provided in this request; however, it also included the additional information of the appellant's units of assignments while in the guerrillas; specifically: Guerrilla (DG), 72 Transport Battalion, 72nd Div., 7th PTD, and BN 72nd Div. 7th MD - Transportation.  Based on the additional information, in November 2010, the NPRC again 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.
C. Legal Criteria and Analysis

Under the American Recovery and Reinvestment Act, a 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 not submitted any documents that meet the first requirement of 38 C.F.R. § 3.203(a).  He has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the U.S. Armed Forces.  Therefore, VA sought service department verification of whether the appellant served in the U.S. Armed Forces in the Philippines.  In December 2009 and in November 2010, based on the information contained in the appellant's claims forms and in the documents he submitted, the service department (via the NPRC) certified 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.  

The Board notes that while the appellant has provided ample evidence to show that he is a veteran of the Philippine Army (guerrillas), he has not provided sufficient evidence to establish that he was a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  Significantly, the documents certifying that he is a veteran of World War II have been provided by the Philippine Veterans Affairs Office, not the U.S. service department, and they are therefore inadequate to establish veteran status.  See 38 C.F.R. §  3.203(a).  Conversely, certifications from the service department (via the NPRC) are binding on VA, and VA has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet. App. 530 (1992).  If a change of service department certification is what the appellant seeks, his remedy lies with the service department and not with VA.

The appellant has provided no further evidence (since the November 2010 certification) that would warrant a request for re-certification of his service/ nonservice by the service department and VA must abide by the service department's certification.  See Capellan v. Peake, 539 F.3d 1737 (Fed Cir. 2008); Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).  Accordingly, the Board finds the appellant did not have the requisite service and is not a veteran so as to establish eligibility for compensation from the Filipino Veterans Equity Compensation Fund.  Since the law is dispositive in this matter, the claim must be denied because of the absence of legal merit or entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

The appeal to establish veteran status for the appellant and his entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs