Citation Nr: 1300057	
Decision Date: 01/02/13    Archive Date: 01/11/13

DOCKET NO.  10-41 193	)	DATE
	)
	)

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


THE ISSUE

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


ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel



INTRODUCTION

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 determination of a Department of Veterans Affairs (VA) Regional Office (RO) which denied the appellant's claim for one-time payment from the Filipino Veterans Equity Compensation Fund.  A notice of disagreement was received in May 2010, a statement of the case was issued in September 2010, and a substantive appeal was received in October 2010.

Please note 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 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.


CONCLUSION OF LAW

The appellant did not have the requisite service to entitle him to payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 5107 (West 2002); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a)(1) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

As for the appellant's claim of basic eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund, 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 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) (as veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of 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 the May 2010 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.  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).

Accordingly, the issue presented is solely one of statutory interpretation and the claim is barred as a matter of law.  See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim for a benefit to which the claimant is not entitled as a matter of law).

The facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to the type of service that qualifies an individual for eligibility for compensation under the Filipino Veterans Equity Compensation Fund.  Accordingly, VA's duties to notify and assist are generally inapplicable.

The Board observes that in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the Federal Circuit held (in the context of a Dependency and Indemnity Compensation claim), that where service department certification of a claimant'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 also 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 a veteran'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 statutes 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.

In this case, the RO has obtained three service department certification of the claimant's alleged active service (in December 2009, April 2010, and September 2012).  The most recent certification requests from the RO expressly describe the inclusion of the documents and statements submitted by the appellant; these documents were provided to the service department for consideration in the certification determination.  No new documentation or information has been submitted by the appellant (or any other source) since the most recent service department certification in September 2012.

In a statement that was received by VA in May 2012, the appellant stated that he is "willing to be represented by an accredited representative of a veterans organization recognized by the Section of Department of Veteran Affair[s]."  Statements made by the appellant in another May 2012 letter suggest that he may have confused the option of having a Decision Review Officer assigned to his case with the option of appointing an accredited Veterans Service Organization to represent him in his appeal.  

Regardless of the appellant's intention, he was provided information about the availability of, and services provided by, Veterans Service Organizations in a June 2012 letter.  This letter listed examples of Veterans Service Organizations, informed him of an Internet site that listed more organizations, and notified him that he could find contact information for a particular organization in his local telephone book.  The Board finds that this letter satisfies VA's duty to notify and assist the appellant in obtaining representation.

The evidence of record provides sufficient information to adequately evaluate the claim.  Therefore, no further assistance to the appellant with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the appellant.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Background

In March 2009, the appellant submitted an application for one-time payment from the Filipino Veterans Equity Compensation Fund.  He reported that he had served as a Recognized Guerilla from August 1942 September 1945.  

In November 2009, the RO contacted the service department and requested verification of the appellant's reported military service.  In its request, the RO included the information provided by the appellant; the RO also noted that the appellant's name is not listed in the Reconstructed Recognized Guerilla Roster maintained by the Manila RO.  In December 2009, the National Personnel Records Center (NPRC) 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.

In March 2010, the RO requested re-certification of the service department's findings, to ensure consideration of an alternate spelling of the appellant's name.  The RO noted that the appellant's name (contemplating the alternate spelling) is not listed in the Reconstructed Recognized Guerilla Roster maintained by the Manila RO.  In its request, the RO included the information provided by the appellant.  In April 2010, the NPRC again 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.

In May 2010, the RO denied the appellant's claim on the basis that the service department had certified that he did not have the requisite military service to establish eligibility therefor.  The appellant filed a notice of disagreement in May 2010, and at that time reiterated that he had served as a recognized guerilla.  The appellant perfected an appeal of the RO's determination in October 2010.  At that time, he explained his contentions:

I was a member of the biggest guerilla organization in central Luzon[:] the Hukbalahap.  Before we were discharged from the service we took actions in the Emmancipation of American and Filipino prisoner in Camp Manacnac now Fort Magsaysay in Bangad, Cab, City[.]  [A]t present I am receiving my old age pension [which] as far as I know is given by the U.S. Government.

During the course of this appeal, the appellant furnished copies of a number of documents, with the submissions primarily featuring documents from Philippine agencies and organizations; these have included various identification cards, bank account information, Certification of Registry of Birth, an Application for Old Age Pension to the Philippine Veterans Affairs Office, and a Statement of Service from the Philippine Veterans Affairs Office.

Accordingly, in June 2012, the RO contacted the service department and requested reverification of the appellant's reported military service based on the expanded set of evidence received in connection with this claim.  The RO followed up with a repeat of this request in September 2012.  These most recent requests expressly note that the documentation submitted by the appellant and the appellant's own statements in support of his claim were forwarded to the service department for consideration in the certification determination; they also otherwise repeat the pertinent information presented in the prior certification requests.  In September 2012, the NPRC responded that there was "no change warranted in prior negative determination."

III.  Applicable Law

The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War.  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).

On February 17, 2009, the President signed the American Recovery and Reinvestment Act, intended for "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization."  See Pub. L. No. 111-5, 123 Stat. 115 (2009).  The legislation included a provision for the creation of the Filipino Veterans Equity Compensation Fund, providing one time payments to "eligible persons" in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens.  Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).

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 or 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).

With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for ninety days for a line of duty disability.  38 C.F.R. § 3.203(b).  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).

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.").

IV.  Analysis

As set forth above, the NPRC has three times 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.  VA is bound by that certification.

The Board has carefully considered the documentation submitted by the appellant, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service.  The documents submitted by the appellant were not issued by the United States service department, nor do they contain the necessary information to establish entitlement to the benefit sought.  As such, those documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA, including the one-time payment from the Filipino Veterans Equity Compensation Fund.  Again, the Board is bound by the United States service department's certification.  See e.g. Capellan, 539 F.3d at 1376 (noting that "if the United States service department refuses to verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not the VA").

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




____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs