Citation Nr: 1031230 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 09-49 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal Entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). This case comes before the Board of Veterans' Appeals (Board) from an August 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. In that decision, the RO denied legal entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant applied for compensation under the recently enacted American Recovery and Reinvestment Act, under which 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). Section 1002 (d) contains eligibility requirements similar to those applicable to claims for other benefits under VA law, i.e., service 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, or service in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538), as well as discharge under conditions other than dishonorable. See also 38 U.S.C.A. § 107(a) (West 2002); 38 C.F.R. § 3.40 (2009). Section 1002(j)(2) of the new law also provides that VA will administer its provisions in a manner consistent with VA law including the definitions in 38 U.S.C.A. § 101 except to the extent otherwise provided in the statute. In order to be eligible for benefits administered by the VA, the evidence must establish that the individual seeking benefits is a Veteran. The term "Veteran" is defined in 38 U.S.C.A. § 101(2) as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. Under 38 C.F.R. § 3.203(a), the 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. A copy of an original document is acceptable if the copy is issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; and (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of VA, the document is genuine and the information contained in it is accurate. When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a), VA is required to request verification of service from the service department. See 38 C.F.R. § 3.203(c). Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and the VA has no authority to amend or change their decision. The Court has held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon the VA. See Spence v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In this case, the appellant sought compensation under the Filipino Veterans Equity Compensation Fund. In his February 2009 claim, the appellant indicated that he had served in the 3d battalion in the Bulacan Military Area. Based on the information provided in the February 2009 claim, the RO requested verification of the appellant's service from the National Personnel Records Center (NPRC). The NPRC responded in June 2009 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. The appellant filed a September 2009 notice of disagreement along with multiple documents purporting to show the required service, including an Appointment document, Identification document, Affidavit of Commanding Officer, and Certificate of Discharge. The RO continued the denial of the claim in the October 2009 statement of the case, noting that another attempt to verify his service ("reverification") was not required as the evidence submitted did not show any personal data that is substantially different than that VA has provided to the NPRC. In Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the Federal Circuit addressed the issue of when VA's duty to assist required it to re-attempt verification of Philippine military service when new information was provided after an earlier adverse determination. The Federal Circuit held that, generally, after a service department has failed to verify service, new evidence relating to a claimant's service requires VA to again request verification. Id. at 1381. While another attempt may not be required if new evidence is submitted that is cumulative of evidence previously submitted, here, the appellant had not submitted any documents in connection with his initial claim, and then submitted relevant documents after verification had been attempted. Capellan requires another request for service verification in these circumstances. A remand is thus required for the RO to make such a request. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) Contact the service department and seek service department verification of the appellant's claimed active service in the U.S. Armed Forces in the Far East in World War II. In connection with this request, provide the service department with copies of any relevant records in the claims file, including those submitted by the appellant with his notice of disagreement. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2009).