Citation Nr: 1300627	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  10-42 996	)	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 monetary benefit under the Filipino Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel



INTRODUCTION

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO), which determined that the Appellant did not have qualifying service to be eligible for the one-time payment from the Filipino Veterans Equity Compensation Fund.

The Appellant had requested an opportunity to appear at a Travel Board hearing before a Veterans Law Judge.  A hearing was scheduled for April 2012, but the Appellant did not appear.  Therefore, the Board will deem the request for hearing waived and adjudicate the claim based on the evidence of record.  

The Appellant has raised the issue of entitlement to service connection for an ankle disability he asserts was incurred in action in World War II, but this claim has not been adjudicated by the RO.  Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action.  

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 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 record fails to establish that the Appellant has 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. §§ 107, 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1, 3.6, 3.40, 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist an appellant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim.  38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include:  (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006).  

The Appellant was not provided with pre-adjudication VCAA notice.  However, he was not prejudiced thereby, since in January 2010, the RO informed the Appellant of the reasons for the denial of his claim.  He was also provided with specific notice of the evidence necessary to prove his claim in a letter dated in May 2011.  Since then, the claim has been re-adjudicated, as evidenced by the March 2012, May 2012, and June 2012 Statements of the Case.  Any procedural deficit was thereby cured.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.).

The Appellant was also not prejudiced by the delayed notice because he has had two years since the January 2010 notice to submit evidence and argument and he was provided the opportunity to provide testimony at a hearing before the Board, which was scheduled but he failed to attend.  He thus had a meaningful opportunity to participate in the adjudication of his claim.

The RO complied with its duty to assist the appellant in the development of his claim.  In this regard it made an initial request for service department verification of the Appellant's service.  When it received additional documentation from the Appellant, it submitted that evidence for service department verification.  See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (holding that VA has a duty to request service department verification of all new and relevant evidence submitted by an appellant to show service).  There are no indications in the record of additional evidence that remains outstanding.

This appeal hinges on whether the appellant had qualifying service.  A medical examination or opinion could not serve to substantiate the claim.  Hence, an examination is not required.  38 U.S.C.A. § 5103A. 

Governing Law

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).  Where the eligible person is not a United States citizen, the payment will be $9,000.

In order to qualify for the benefit, there must be affirmative evidence that the claimant is a "veteran" for the purpose of benefits administered by VA, which requires that the claimant have qualifying military service.

In Section 1002(d) of the statute, an eligible person has qualifying service if he 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, including among such military forces organized guerrilla forces; and was discharged or released from service under conditions other than dishonorable.

For the purpose of establishing evidence of service, the Department of Veterans Affairs 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: 

The evidence is a document issued by the service department; and the document contains needed information as to length, time and character of service; and 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).  

Facts and Analysis

The Appellant filed his claim for Filipino Veterans Equity Compensation in April 2009, asserting that he served from June 1942 to April 1945 as a guerilla, carrying messages and food for the local troops, although he was only 12 years old when he was inducted.

In November 2009, 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 and that his name was not listed in the Reconstructed Recognized Guerrilla Roster maintained at the VA RO in Manila.  

The Appellant did not submit, and the record does not contain, a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge issued by the United States service department in accordance with 38 C.F.R. § 3.203(a)(1).  

The Appellant asserts that he had qualifying service in the Philippine Commonwealth Army as a recognized guerilla and that he sustained an injury in action.  In support of his claim, he has submitted his own sworn affidavit, as well as affidavits from others who assert that they served with him in the guerillas and that he was injured during his service.  Based on these statements, the Veteran's information, including spelling variations of his name and variants of his asserted unit of assignment and service number, were submitted to the NPRC for verification.  

In February 2012 and again in March 2012, the NPRC again 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 and that his name was not listed in the Reconstructed Recognized Guerrilla Roster maintained at the VA RO in Manila. 

The documents submitted by the appellant fail 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 affidavits from other citizens who assert service on behalf of the United States during World War II.  As these statements are not official documents of the type specified in regulation, they may not 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 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 proper course for the Appellant who believes 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 service department.  See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).  

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 United States 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.


ORDER

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




____________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs