Citation Nr: 1114158	
Decision Date: 04/11/11    Archive Date: 04/21/11

DOCKET NO.  10-34 825	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

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).

The record indicates that the appellant had guerilla service during World War II.  He claims qualifying military service for the purposes of legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.


FINDING OF FACT

The National Personnel Records Center (NPRC) 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 Armed Forces of the United States.


CONCLUSION OF LAW

The appellant does not have recognized active military service for the purpose of obtaining the one-time payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2009); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under the recently enacted 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.

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."

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.

Only service department records can establish if and when a person was serving on qualifying active service.  Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994).  The service department's findings are binding and conclusive upon VA.  VA does not have the authority to alter the findings of the service department.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).

For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate U.S. service department under the following conditions: (1) the evidence is a document issued by the United States service department; (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.  38 C.F.R. § 3.203(a).

If a claimant does not submit evidence of military service, or the information is insufficient, VA must request the information from the service department.  Sarmiento v. Brown, 7 Vet. App. 80, 82 (1994); see also Laruan v. West, 11 Vet. App. 80, 82 (1998) (observing that if there is reason to believe that information provided to service department was erroneous (e.g., misspelled name), VA may be required to resubmit request for information to service department.)

It has been held that a person seeking VA benefits must first establish by a preponderance of the evidence that the service member upon whose service such benefits are predicated has attained the status of veteran.  D'Amico v. West, 12 Vet. App. 264 (1999) rev'd on other grounds, 209 F.3d 1322 (2000); Holmes v. Brown, 10 Vet. App. 38, 40 (1997).

The appellant has received veteran benefits from the Republic of Philippines Veterans Affairs Office, based upon service with A Company, 47th Regiment, Hunters ROTC Guerillas.  Notably, the benefits information from the Republic of the Philippine Government fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department, but rather documents from the Philippine government.  

The appellant himself alleges that his unit was "attached" to the 11th Airborne Division of the U.S. Army, and operated in areas supporting and cooperating with American Troops.  See generally Veteran statement dated April 2010; VA Form 9 received in August 2010.  In support of his claim, the appellant has submitted an affidavit from one of the former organizers of the Hunters ROTC Guerillas confirming that the appellant served in military operations with this unit in Laguna, Sierra Madre, Infanta, Quezon, Batangas and Cavite.

The RO acknowledges that the appellant's name is among those individuals maintained on the Reconstructed Recognized Guerilla Roster (RRGR).  However, in October 2010, the NPRC reported 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.  Notably, this certification was based upon all evidence submitted by the appellant, including the affidavit from the former Hunters ROTC organizer.

In this case, the appellant has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1).  

More importantly, the NPRC 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.  This verification is binding on VA such that VA has no authority to change or amend the finding.  Duro, 2 Vet App. at 532.

The Board stresses to the appellant that establishing veteran status with service in the Philippine Commonwealth Army is limited by the requirements and proscriptions of 38 C.F.R. § 3.203 and § 3.41.  These provisions require that an applicant prove service in the Philippine Commonwealth Army with either official documentation issued by a United States service department or verification of the claimed service by such a department.  Soria, 118 F.3d at 748.  There are no other means.  Id.

Quite simply, recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits administered by VA.

Based upon the record in this case, 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.  The appellant may not, therefore, be considered a Veteran for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund.

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for certain VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).

However, it does not appear to the Board that the VCAA is applicable to the type of claim at hand, which involves a claim not found in Chapter 51.  See Barger v. Principi, 16 Vet. App. 132 (2002) (holding that the VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA)).

Furthermore, the issue in this case is limited to the appellant establishing his veteran status for purposes of Filipino Veterans Equity Compensation Fund.  In this case, the appellant has submitted those official service department records in his possession, and he has submitted an affidavit from a former organizer of his guerilla unit.  The NPRC has refused certification in this case based upon review of those records.  See Cappellan v. Peake, 539 F. 3d 1373, 1381-82 (Fed. Cir. 2008) (holding that the appellant has the right to have the NPRC review any service department records in determining veteran status).  The appellant has not argued, and the record does not show, that the certification refusal was based on incorrect, incomplete, or erroneous information to warrant any further attempts at verification.  See generally Sarmiento, 7 Vet. App. at 86; D'Amico, 209 F.3d at 1327; Cappellan, 539 F. 3d 1373 (2009).

In Palor v. Nicholson, 21 Vet. App. 325 (2007), the claimant had attempted to establish veteran status but had no official service department records and the NPRC refused to verify the claimed Philippine service.  The Palor Court held that the VA's failure properly notify the claimant of the means to establish veteran status under 38 C.F.R. § 3.203 and § 3.41 was harmless error as a matter of law.  

The Court reasoned as follows: "This is so because based on the U.S. service department's refusal to certify, there are presumably no documents issued by the U.S. service department that the appellant could submit to VA that would show qualifying service under § 3.203."  Id. at 332.

The disposition of this case is controlled by the Palor precedent, and there are no further means to verify the claimed service by the appellant rendering him ineligible for the benefits being sought as a matter of law.  Palor, 21 Vet. App. at 332-3.  In such a situation, no amount of notice or further assistance to the appellant can change the legal outcome so that any notice deficiency constitutes harmless error.  Id.  See also Mason v. Principi, 16 Vet. App. 129, 132 (2002) (VCAA not applicable as claimed service during the Iranian hostage crisis was not a "period of war" for purposes of entitlement to nonservice-connected pension benefits).

As noted in Soria, and reiterated in Palor, the appellant's "only recourse lies within the relevant service department, not the VA."  Soria, 118 F.3d at 749.  See Palor, 21 Vet. App. at 333.  

ORDER

Eligibility for benefits under the Filipino Veterans Equity Compensation Fund administered by the United States Department of Veterans Affairs is denied.



____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs