Citation Nr: 1310621	
Decision Date: 04/01/13    Archive Date: 04/11/13

DOCKET NO.  11-03 076	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

M. J. In, Associate Counsel



INTRODUCTION

This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines, which denied entitlement to the benefits sought on appeal.

This appeal has been advanced on the Board's 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 appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II.


CONCLUSION OF LAW

The criteria for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund have not been met.  38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).

The United States Court of Appeals for Veterans Claims (Court) has held that in cases where the appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated by the VCAA to inform the appellant of the information or evidence necessary to prove the element of veteran status.  Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) ("Since veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of VCAA notice concerning proof of veteran status is necessary in most, if not all, cases.").

In this case, although the appellant was not provided with the required notification prior to the initial adjudication of his claim, the Board finds that no prejudice has resulted.  In a September 2012 notification letter, the RO explained that verification of military service was the responsibility of the National Personnel Records Center (NPRC) and its findings were binding on VA.  Because NPRC had certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II, he was not legally entitled to payment from the Filipino Veterans Equity Compensation Fund.

After affording the appellant the opportunity to submit additional evidence and argument, the RO reconsidered his claim in a January 2013 Supplemental Statement of the Case.  See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); Medrano v. Nicholson, 21 Vet. App. 165 (2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a Statement of the Case, is sufficient to cure a timing defect).

Moreover, to the extent that the notification provided to the appellant did not include specific information regarding veteran status, the Board finds that such error is not prejudicial.  As set forth in more detail below, 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 U.S. Armed Forces during World War II.  VA is bound by this certification.  See Soria v. Brown, 118 F. 3d 747, 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 ("The Federal Circuit's decision in Soria recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive and binding on VA."); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).

In light of the binding certification, any VCAA notification error is non-prejudicial as the appellant is not entitled to the benefit as a matter of law.  See Valiao v. Principi, 17 Vet. App. 229 (2003); see also Palor, 21 Vet. App. 332-33 ("Therefore, in assessing whether the appellant was prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status, the Court can conclude only that because the appellant is currently ineligible for VA benefits as a matter of law based on the [the service department's] refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error").

As to VA's duty to assist the appellant, there is no suggestion by the appellant or the record of any outstanding evidence.  VA obtained a determination by the service department, and the appellant has submitted documents.  The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) that, in the context of a Dependency and Indemnity Compensation claim, where service department certification of an appellant's active service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department.  The Federal Circuit in Capellan held that it was a violation of VA's duty to assist not to request service department review of additional or new documents or evidence provided by an appellant concerning an appellant's active service after the initial service department certification.  See Capellan, 539 F.3d at 1380-81.  The Federal Circuit further held that "the correct interpretation of the governing statues and regulations requires that a claimant's new evidence be submitted and considered in connection with a request for 'verification of service from the service department" pursuant to 38 C.F.R. § 3.203(c)."  Id.  

The record reflects that the RO initially issued an Administrative Decision in March 1971 which denied the appellant's claim based on an October 1970 negative determination from the U.S. Military Records Center.  Subsequently, in July 2010, the RO made a new request to the service department with the appellant's PA AGO Form 23 (Affidavit for Philippine Army Personnel) attached for reference, and received a determination from that agency in September 2010.  This request was made under the appellant's name using two alternate spellings.  In October 2010, the RO re-submitted the request under different versions of the appellant's name, and received a negative determination from the service department in November 2010.

The appellant submitted various documents, including his PA AGO Form 23 (Affidavit for Philippine Army Personnel); reservist assignment letter dated in May 1948; certificate of discharge dated in January 1946; affidavit of service induction into the Military Guerilla in October 1943; a copy of SO 19, Hq., USAFIP Area Command; supplementary roster special appointment dated in October 1943; certificate of induction; an April 1990 letter approving the appellant's claim for educational benefits issued by the Philippine Veterans Affairs Office (PVAO); and various affidavits attesting to the marriage of the appellant and his spouse.  The appellant's son submitted a statement, dated and received in January 2011, in support of the appeal.  In conjunction with the statement, the appellant's son submitted a copy of certificates of common shares of capital stock of the Philippine Veterans Bank issued in the appellant's name, and a copy of the appellant's identification card issued by the PVAO, as evidence that the appellant was a certified World War II veteran.  Based on the additional evidence, the RO again submitted requests for verification of the appellant's service to the NPRC in September, November and December 2012, and again received negative responses in November 2012 and February 2013.

In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A (West 2002), or 38 C.F.R. § 3.159 (2012).  Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of the claim.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided.  No reasonable possibility exists that any additional assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).  The Board further notes that the Court has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  As set forth in more detail below, the appellant's appeal must be denied as a matter of law.

Law and Regulations

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 called into the service of the United States Armed Forces of the Far East by President Franklin D. Roosevelt.  See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941).  Current law, however, provides that the service of certain Filipino veterans does not entitle them to receive full benefits administered by the Secretary of the U.S. Department of Veterans Affairs. 38 U.S.C.A. § 107 (West 2002).

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 February 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.

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 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 who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538).  Additionally, the person must have been discharged or released from such service under conditions other than dishonorable.  Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009).

The Act further directs the Secretary to "administer the provisions of this section in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and shall apply the definitions in section 101 of such title in the administration of such provisions, except to the extent otherwise provided in this section."  Id.

The Secretary 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. § 501(a)(1) (West 2002).  Pursuant to that authority, the Secretary has prescribed regulatory provisions governing the evidentiary requirements for establishing the requisite service for VA benefits purposes.

That regulation provides that for the purpose of establishing entitlement to 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 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 the VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a) (2012).

When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, the VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c) (2012).

The Court has held that the findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997).  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has reached the same conclusion. See e.g. Soria v. Brown, 118 Fed. 3rd 747-749 (Fed. Cir. 1997) (noting that "[b]ecause the United States Department of the Army refused to certify [the claimant's] alleged service in the Philippine Army, the VA properly refused to consider his claim for veterans' benefits based on that service).

The record on appeal shows that in February 2009, the appellant submitted an application for one-time payment from the Filipino Veterans Equity Compensation Fund based on recognized guerrilla service during World War II.  Specifically, he reported that he had served in the Recognized Guerilla from October 16, 1943 to January 24, 1946.

He also submitted a PA AGO Form 23 (Affidavit for Philippine Army Personnel) showing that the appellant was a civilian guerilla; reservist assignment letter dated in May 1948; certificate of discharge dated in January 1946; affidavit of service induction into the Military Guerilla in October 1943; a copy of SO 19, Hq., USAFIP Area Command; supplementary roster special appointment dated in October 1943; certificate of induction showing that the appellant was inducted in October 1943; an April 1990 letter approving the appellant's claim for educational benefits issued by the Philippine Veterans Affairs Office (PVAO); and various affidavits attesting to the marriage of the appellant and his spouse.

In a January 2011 statement, the appellant's son claimed on behalf of his father that the appellant pointed out the fact that he received shares from the capital stock of Philippine Veterans Bank and that he received a monthly pension from the PVAO.  He submitted a copy of certificates of common shares of capital stock of Philippine Veterans Bank issued in the appellant's name, and a copy of the appellant's identification card issued by the PVAO, as evidence that the appellant was a certified World War II veteran.

Upon receipt of the appellant's claim, the RO contacted the service department and requested verification of the appellant's reported military service.  In September and November 2010, November 2012 and February 2013, the service department responded that the appellant had had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States.

The appellant has not submitted any service document that establishes service as a recognized guerrilla with the U.S. Armed Forces.  None of the documents he has submitted are of the type acceptable as service documents establishing the requisite status.  They show that the appellant served in the Military Guerilla, but there is no evidence of record showing that he was in the recognized guerrillas in the service of the U.S. Armed Forces.

The Board acknowledges that the appellant has been in receipt of educational and pension benefits from the Philippine government based on his military service.  However, a determination by the Philippine government that the appellant is entitled to benefits under a Philippine program is of no relevance to the question of eligibility for benefits under the Filipino Veterans Equity Compensation Fund.

In this case, the service department has considered the question of the appellant's military status, including a review of the documentation of record.  However, a negative response was received.  In light of the service department's certification that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II, the Board finds that the preponderance of the evidence is against the claim; therefore, the claim must be denied.

As the service department has certified that the appellant did not have the requisite service to qualify him for payment from the Filipino Veterans Equity Compensation Fund, the appeal must be denied.  Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs