Citation Nr: 1300253 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 10-30 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant is a veteran for the purpose of establishing entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant alleges that he was a recognized guerrilla in the service of the Armed Forces of the United States during World War II. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In August 2011, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 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 National Personnel Records Center (NPRC) has certified and re-certified twice 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 is not a veteran, and therefore is not eligible to receive Filipino Veterans Equity Compensation Fund benefits. 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. §§ 3.40, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Palor v. Nicholson, 21 Vet. App. 325 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, in claims where it is necessary to first establish veteran status, proper VCAA notice must be tailored to also inform claimants of the information or evidence necessary to prove the element of veteran status, what information the appellant is responsible for providing, and what information VA will seek to obtain concerning that element. A close review of the claims file found that the appellant was not advised of VA's duties to notify and assist in the development of his claim prior to the initial adjudication of this matter. However, the Board finds that he is not prejudiced by such notice defect. In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court in essence held that - except for cases in which VA has failed to inform the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, and determinations on the issue of harmless error should be made on a case-by-case basis. The appellant has not alleged that he was prejudiced because he did not receive timely notice of what was needed to substantiate his claim. The record reflects that based on information he provided in his March 2009 claim for benefits, the RO sought service department verification of his service, and based on service department certification that he did not have qualifying service, determined he is ineligible for VA benefits as a matter of law. When an appellant is ineligible for VA benefits as a matter of law based on the service department's refusal to certify the appellant's service, he is not prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status. See Palor, 21 Vet. App. at 332-33 ("given the binding nature of the U.S. service department's certification . . . a remand for further development could not possibly change the outcome of the decision"). The RO sought certification of the appellant's military service and advised him of what documents he could submit to assist in the matter. There is no indication that information submitted by VA to the service department for the purposes of certifying his service was erroneous or incomplete. The appellant has not identified or submitted any further evidence suggesting that re-certification of his service/nonservice is necessary. In a statement received in January 2012, he indicated that he has submitted all the evidence he felt would support his claim. VA's duty to assist is met. II. Legal Criteria, Factual Background, and Analysis The appellant seeks a one-time payment from the Filipino Veterans Equity Compensation Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009) (to be codified in Title 38 of the United States Code: Veterans' Benefits). 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. The Secretary of VA is to administer the fund consistent with applicable provisions of the Title 38 of the United States Code. Under Section 1002, an eligible person is any person: (1) 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 (2) any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and (3) any eligible person was discharged or released from service under conditions other than dishonorable. See 38 C.F.R. § 3.40 (eligibility for VA benefits for certain Philippine service). For the purpose of establishing evidence of service, 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 Department of Veterans Affairs the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). When the claimant does not submit evidence of service or the evidence submitted does not meet the stated requirements, the Department of Veterans Affairs will request verification of service from the service department. 38 C.F.R. § 3.203(c). The findings of the U.S. service department verifying a person's service are binding on VA for the purpose of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992). In his claim for a one-time payment from the Filipino Veterans Equity Compensation Fund filed in March 2009, the appellant alleges qualifying service as a recognized guerrilla in the service of the Armed Forces of the United States. He states that he served in "D" Company, 1st battalion, Saber Force, under Colonel Liwanag, attached to various units of the U.S. Armed Forces. As proof of qualifying service, the appellant has submitted, on different occasions throughout the pendency of the claim, copies of various documents, including the following: PVAO Form 4, Certification of the Ministry of National Defense, dated in March 1980, certifying that the appellant served in the 3rd Army Corps, MFAT; AGNR2, Certification from General Headquarters of the Armed Forces of the Philippines at Camp General Emilio Aguinaldo, Quezon City, dated in July 1992 and April 1995, certifying that he was a recognized guerrilla beginning in June 1943; AG-VAB Form 40, certification of Headquarters, National Defense Forces, Camp Murphy, Quezon City, dated in December 1947, certifying the appellant was carried in the approved roster (guerrilla) of the 3rd Army Corps, MFA (Element of Saber Force); PA AGO Form 55, Philippine Army discharge document, dated in April 1946, indicating that the appellant, of Markings Fil-American Forces, was honorably discharged in February 1946; PVAO (RD) Form 002, Department of National Defense, Veterans Compound, Camp Gen. Emilio Aguinaldo, Quezon City, dated in April 2009, certifying that the appellant was a veteran of Philippine Revolution/World War II who served with 3rd Army Corps, MFAT, as a deserving guerrilla, from June 1943 to February 1946; PVAO Form 4327, Acknowledgement of the Department of Finance, Bureau of the Treasury, Manila, dated in March 1979, certifying that the appellant was entitled to back pay as a member of the armed forces of the Philippines and recognized guerrillas; VCSS Form 3, Order of Payment, Department of National Defense, Camp Aguinaldo, Quezon City, dated in October 1969, providing a statement of pay and allowances for the period of June 1943 to June 1945; and VCSS Form 1-a, Extract from Military Service Record from General Headquarters, Armed Forces of the Philippines, Office of the Adjutant General, Camp Gen. Emilio Aguinaldo, Quezon City, dated in February 1969, indicating that the appellant was a guerrilla in "D" company, 1st battalion, Saber Force beginning in June 1943 under Colonel Liwanag and was honorably discharged in February 1946. The appellant also submitted a U.S. passport, issued to him in July 2008; various documents regarding his U.S. application for naturalization; a letter from VA's Health Eligibility Center, dated in February 2004, confirming the appellant's enrollment in the VA health care system; and an award from the Office of the President of the Philippines, dated in April 1996, showing the appellant's service decorations. As the documents were not issued by a U.S. service department, the RO on three different occasions sought verification of service from the NPRC, which in January 2010, September 2010, and October 2011, certified and re-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. Although the appellant submitted additional copies of documents in January 2012, and a statement in October 2012, which were received after the last response by NPRC in October 2011, the documents were duplicative of those that were previously received and considered and the statement did not disclose any new information about the appellant's unit of assignment or any evidence about a variation of the appellant's name or service number. In other words, there was no useful information for the RO to request another re-verification from the NPRC. As the documents submitted by the appellant were not issued by a U.S. service department, they do not satisfy the requirements of 38 C.F.R. § 3.203(a) as acceptable proof of service, and may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including a one-time payment from the Filipino Veterans Equity Compensation Fund. The appellant contends that the documentation submitted shows that he was a bona-fide World War II veteran and entitled to the benefit sought. He maintains that he became a U.S. citizen in August 1998 through the findings of the U.S. Immigration and Naturalization Service in Manila, Philippines and Lincoln, Nebraska, which were based on military service documents that he had submitted. He argued that the NPRC records are incomplete, due to a 1973 fire at the facility, and that the best source of reference of veterans of World War II was Camp General Emilio Aguinaldo at Quezon City, Philippines. He asserts that he rendered valid military service to make him eligible for benefits from the Filipino Veterans Equity Compensation Fund. He identified a friend who had served in the same military company, battalion, and regiment as him and under the same commander, and who had already received his benefits from the Filipino Veterans Equity Compensation Fund. He strongly disagrees with the decision to deny him benefits from the same fund. Despite the contentions of the appellant in support of his claim, the evidence he has submitted is not evidence issued by a service department of the United States military. His argument regarding status as a naturalized citizen of the United States has been noted, as well as the fact that documentation of veteran status from the Philippine government is sufficient to establish such status under the Immigration Act of 1990. 8 U.S.C.A. § 1440 (West 2002); Almero v. INS, 18 F.3d 757 (9th Cir. 1994). However, the Court of Appeals for the Federal Circuit has held that that this method of substantiation under The Immigration Act has no bearing on VA's process for establishing service in the U.S. Armed Forces. Soria v. Brown, 118 F. 3d 747 (Fed. Cir. 1997). VA is bound only by the service department's certification with respect to the appellant's status as a veteran of the U.S. military. As previously found, valid military service has not been certified by a United States service department. As the appellant has provided no further information or evidence that would warrant a request for recertification from a U.S. service department, no further development is needed. See Sarmiento v. Brown, 7 Vet. App. 80 (1994) (recertification with evidence of erroneous spelling of name); Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (recertification when there is newly received relevant evidence since the negative certification). As the U.S. service department, through the NPRC, certified and re-certified twice, that the Appellant did not serve as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the United State Armed Forces, the finding is binding on VA for the purpose of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992). Therefore, the Board concludes that the appellant is not a veteran, and is not eligible for Filipino Veterans Equity Compensation Fund benefits under the American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5. As the law is dispositive in this matter, the claim must be denied because of the lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal seeking to establish veteran status and eligibility for benefits from the Filipino Veterans Equity Compensation Fund appeal is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs