Citation Nr: 1127637	
Decision Date: 07/25/11    Archive Date: 08/02/11

DOCKET NO.  09-49 230	)	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

Michael T. Osborne, Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

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).
FINDING OF FACT

The appellant lacks qualifying active service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the Armed Forces of the United States.


CONCLUSION OF LAW

The appellant does not have recognized active service for the purpose of obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2010); 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

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.

The Board acknowledges initially that, although the appellant was not provided with pre-adjudication VCAA notice concerning his claim, the lack of notice was not prejudicial.  Palor v. Nicholson, 21 Vet. App. 325 (2007) (citing Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997)).  The Court in Palor stated, "[I]n 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 NPRC's refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error."  See Palor, 21 Vet. App. at 332.  In other words, a VCAA notice error like the one which occurred in this case is not prejudicial where the appellant is not entitled to the benefit as a matter of law.  See also Valiao v. Principi, 17 Vet. App. 229 (2003).  As will be explained below, the appellant does not have qualifying active service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the Armed Forces of the United States.  Such service is a fundamental pre-requisite to qualify for the compensation which the appellant seeks from the Filipino Veterans Equity Compensation Fund.  See generally American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).  Because the appellant lacks qualifying service, he is not entitled to the benefit he seeks as a matter of law.

The appellant also has not contended, and the evidence does not show, that there are additional outstanding service records demonstrating that he, in fact, had recognized active service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the Armed Forces of the United States which VA has not obtained or submitted to the relevant service department for verification.  Capellan v. Peake, 539 F.3d 1373 (2008) (finding that VA erred in denying the appellant's claim with no review of subsequent evidence by the service department).  The Board notes in this regard that, after the appellant submitted additional information concerning his alleged active service dates on his December 2009 VA Form 9, the RO submitted all of this information to the relevant service department (in this case, the U.S. Army) for re-verification.  The U.S. Army responded in December 2010 that the appellant still had no recognized active service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the Armed Forces of the United States.  Nor has the appellant asserted that the lack of pre-adjudication VCAA notice was prejudicial to him.  Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The Board observes that notice as to what is required to substantiate a claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund, including VCAA notice, was provided to the appellant in the November 2009 Statement of the Case.  His claim also was readjudicated at that time.  Accordingly, the Board concludes that, because no reasonable possibility exists that providing the appellant with further assistance will aid in substantiating his claim, the lack of pre-adjudication VCAA notice was not prejudicial.  See also Sanders v. Nicholson, 487 F.3d 881 (2007), rev'd sub nom. Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  And a remand to provide the appellant with additional VCAA notice would serve no useful purpose.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided).  

In this case, it is the law, and not the facts, that are dispositive of the appeal.  Thus, the Board finds that the duties to notify and assist under the VCAA are not applicable.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  The Court has held that enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations.  Given the forgoing, the Board will proceed to adjudicate the appellant's claim.

The appellant contends that he served in the U.S. Armed Forces in the Far East (USAFFE), including in an infantry division and in the recognized guerillas, between August 1941 and May 1946.  He also contends that this service entitles him to a one-time payment from the Filipino Veterans Equity Compensation Fund.

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.

In July 1955, January and August 2007, and in December 2010, the National Personnel Records Center (NPRC) verified 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 did not submit 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).  The Certifications from the Office of Adjutant General and Affidavits for Philippine Army Personnel submitted by the appellant when he filed other claims with VA do not 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 Board observes that the evidence submitted by the appellant in support of his currently appealed claim consisted of his lay statements, a barely legible copy of a National Archives and Records Administration Form 13075 dated in May 2007, and copies of newspaper articles pertaining to a 1994 decision issued by the U.S. Court of Appeals for the Ninth Circuit in a case involving U.S. Immigration and Customs Enforcement (ICE) (formerly known as the Immigration & Naturalization Service (INS)).  

A review of the claims file shows that the appellant submitted multiple lay affidavits, an alleged chronology of his active service which he prepared, copies of Affidavits for Philippine Army Personnel and other Philippine Army documents, and copies of prior correspondence he had received from VA in support of a request to reopen a previously denied claim of legal entitlement to VA benefits, a claim which is not currently before the Board.  Following a review of this evidence, the Board denied the appellant's request to reopen a previously denied claim of legal entitlement to VA benefits in November 2008.  The appellant filed a motion for reconsideration of the Board's November 2008 decision in March 2009.  The Board denied this motion by letter dated in August 2009.  The appellant did not appeal to the Court and the Board's November 2008 decision is now final.  See generally 38 U.S.C.A. §§ 7104, 7266 (West 2002 & Supp. 2010).

All of the evidence in the claims file dated prior to the filing of his currently appealed claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund in February 2009 was to the effect that the appellant, in fact, had active service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  With the exception of the newly submitted lay statements, the Board observes that the other evidence submitted by the appellant in support of his currently appealed claim already had been submitted by him to VA in support of his request to reopen a previously denied claim of legal entitlement to VA benefits which the Board denied in November 2008.  Nevertheless, the RO properly submitted all of this evidence to the relevant service department for re-verification of the appellant's alleged active service in July 2010.  None of the evidence submitted by the appellant in support of his currently appealed claim may be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including the one- time payment from the Filipino Veterans Equity Compensation Fund.

The appellant has contended that his service personnel records (which, in his view, demonstrate that he has qualifying active service) were lost in a July 1973 fire at the NPRC and cannot be reconstructed.  The Board notes that, generally, in cases where service treatment records (or other pertinent records, for that matter) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case.  O'Hare v. Derwinski, 1 Vet. App. 365 (1991).  VA also must provide an explanation to the appellant regarding VA's inability to obtain his or her service treatment records.  Dixon v. Derwinski, 3 Vet. App. 261 (1992).  The Court also has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.  Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000).  Despite the appellant's assertions to the contrary, there is no reasonable possibility that there were any records pertaining to his alleged active service available at the NPRC prior to the July 1973 fire which may have been lost in that fire because he has never had any qualifying active service and, because he is not a Veteran, any alleged service personnel records would not have been maintained by the NPRC at that time.  Thus, the Board finds that the appellant's argument regarding missing or lost service personnel records due to the July 1973 fire at the NPRC is meritless.

The Board finds that the appellant is not entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund.  The NPRC has certified repeatedly 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.  Although the appellant has provided additional information concerning his alleged active service on numerous occasions, including lay statements and documents from the Philippine Army, none of the additional information which was submitted to the NPRC for re-verification has changed the service department's verification 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 which has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet App. 530, 532 (1992).  The proper course for the appellant, if he believes that there is a reason to dispute the report of the service department or the content of military records, is to pursue such disagreement with the relevant service department (in this case, the U.S. Army).  See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).  Recognition of service by the Philippine Government is not sufficient for benefits administered by VA because VA is bound by the service department certifications.  Given the service department's verification of no recognized service, the Board finds that the appellant is not a Veteran for the purpose of establishing entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.  Therefore, the appellant's claim of entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund must be denied as a matter of law.  See Sabonis, 6 Vet. App. at 426.


ORDER

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



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs