Citation Nr: 1301006	
Decision Date: 01/10/13    Archive Date: 01/16/13

DOCKET NO.  10-34 816	)	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 one-time payment from the Filipino Veterans Equity Compensation Fund.



ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel








INTRODUCTION

The claimant/appellant alleges she is a veteran who served during World War II.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decisional letter from the Manila RO that denied her claim seeking compensation from the Filipino Veterans Equity Compensation Fund.  Because veteran status of the person seeking benefits is a threshold requirement for establishing entitlement to such benefit, that is the matter before the Board.

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).


FINDINGS 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 United States Armed Forces.


CONCLUSION OF LAW

The appellant is not a veteran, and is not eligible for one-time payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. § 501(a) (West 2002 & Supp. 2011); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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 her claim prior to the initial adjudication of this matter.  However, the Board finds that she is not prejudiced by such notice defect.  In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court reversed the case of Sanders v. Nicholson, 487 F.3d 881 (2007), which had held that any error in VCAA notice should be presumed prejudicial and that VA must always bear the burden of proving that such an error did not cause harm.  In reversing Sanders, the 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.  Shinseki, 129 S. Ct. at 1704-06.  The appellant has not alleged that she was prejudiced because she did not receive timely notice of what was needed to substantiate her claim.  The record reflects that based on information she provided in association with her February 2009 claim for benefits, the RO sought service department verification of her service, and based on service department certification that she did not have qualifying service, determined she 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, she is not prejudiced by VA's failure to notify her 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 her of what documents she 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 her service was erroneous or incomplete.  The appellant has not identified or submitted any further evidence suggesting that re-certification of her service/nonservice is necessary.  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim.

Factual Background 

In February 2009, the appellant submitted a VA Form 21-4138 to apply for a one-time payment from the Filipino Veterans Equity Compensation Fund.  She contended that she had active service in a Recognized Guerilla unit and listed her full name, provided her birthplace and date of birth, and stated that she served with 6th MD Guerilla from December 15, 1942 to February 26, 1946.  She also provided the names of her father, mother, and current (deceased) spouse.  She did not provide a service number.

In June 2009, the RO submitted the appellant's name, an additional name under which she may have served, her date and place of birth, dates of service, and the names of her parents and spouse to the National Personnel Records Center (NPRC) and requested that they furnish complete AGUZ Form 632 and all extracts of Form 23 executed prior to and subsequent to June 30, 1946.  The request noted that the appellant's name was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by the Manila VA RO.  Her service number, character of separation or discharge and last grade, rate or rank were listed as unknown.  In August 2009, NPRC 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.  It was noted that the search was conducted under the appellant's married and maiden names with no results.  

With her October 2009 Notice of Disagreement, the appellant submitted a document from the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office, certifying that the appellant is a "veteran of Philippine Revolution/World War II. who served with 6th Military District with the grade/rank of Pvt."  It was also certified that the appellant's educational benefit was approved November 18, 1947 and her old age pension was approved effective April 9, 1990.  The certification shows that the appellant joined December 15, 1942 and was discharged on April 30, 1944.  Her "Category of Veteran" was "Not Carried but Paid Grla." and her claim status was active.  

In September 2010, the RO changed the date separated from active duty as April 30, 1944 and the last grade, rate or rank as "Pvt" to the information submitted to NPRC and requested re-verification.  In October 2010, NPRC again 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.

In a November 2010 communication, the appellant stated that she belonged "to the Regional Field Hospital, 63rd Inf., 6MD and served as First Aider with a Rank of Private.  No serial number was issued since we [were] under the Guerilla Movement."  She recalled that she was discharged on April 30, 1944 and, although she was a civilian, she continued her work in the war effort by joining the family of a colonel and working for the benefit of the Filipino soldiers.  The appellant stated that she "joined the processing for those who served during WWII, at Camp Hernandez, Dingle, Iloilo" on February 26, 1946 and is currently a "Phil. Veterans Affairs Office pensioner both as a veteran and a surviving spouse."  In support of her claim, the appellant submitted a copy of her Form 23, Affidavit for Philippine Army Personnel, "stating that [she] received salaries [for her] WWII services."  

In December 2010, the RO changed her unit of assignment as "1st AIDER REGTL FIELD HOSP REGIONAL FLD HOSP 63RD INF 6TH MILITARY DISTRICT," identified additional names under which she may have served, date separated from active duty as February 26, 1946, and changed her last grade, rate or rank at "PVT MC" to the information submitted to NPRC and requested re-verification based on the change of the appellant's unit of assignment and additional names under which she may have served.  In January 2011, NPRC again 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.

In December 2010 (after the December 2010 RO request for re-verification), the appellant subbmitted additional evidence in support of her claim including a February 8, 1946 Certificate of Service from Headquarters, Guerrilla Affairs Unit Panay, certifying that the appellant had "rendered service with the Regt'l Field Hosp, 63rd Inf, 6th MD (Recognized Guerrilla) as First Aider from 15 December 42 to the time was released from the 6th MD on 30 April 44;" an Affidavit from Lt. Col. [redacted] stating that the appellant was under his command as a "1st Aider of the Regtl Field Hospital, 63d Inf Regt, 61st Division;" a March 31, 1943 Monthly Roster showing that the appellant separated from "Regtl Field Hosp 63rd Inf" on December 15, 1942; and a February 6, 1943 "Special Orders" from Army of the United States of America showing that the Appellant was a "First Aider" and was "inducted into the service of the AUSA, given the assimilated rank of private and assigned to the Regt'l Field Hospital."  

In April 2011, the RO submitted the evidence provided by the appellant in December 2010 to the NPRC and requested re-verification based on this additional information.  In April 2012, NPRC again 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.

Legal Criteria and Analysis

Under the American Recovery and Reinvestment Act (ARRA), 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 Feb. 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.

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.

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."  For purposes of establishing entitlement to VA 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 under 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 VA, 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 does not meet the requirements of this section, VA shall request verification of service from a service department.  38 C.F.R. § 3.203(c).

The appellant has not submitted any document that meets the first requirement of 38 C.F.R. § 3.203(a).  She has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the U.S. Armed Forces.  Therefore, as required under § 3.203 VA sought service department verification of whether the appellant served in the U.S. Armed Forces in the Philippines. 

In August 2009, the service department (via the NPRC) certified it had no record of the appellant serving as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  Based on additional information received from the appellant, VA sought re-verificaiton of the appellant's service on three separate occasions and each time, most recently in April 2012, the service department, (via the NPRC), recertified that it had no record of the appellant serving as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  

The appellant (and her daughter on her behalf) argue that the "ARRA itself does not limit the sources of verifying military records."  They acknowledge that service department verificiation of qualifying service was required prior to the passage of the ARRA, but argue that the documents issued by the Philippine Veterans Affairs Office should be accepted as proof of qualifying service for payment of Filipino Veterans Equity Compensation because the ARRA "does not require that the service of the veteran is documented or verified by the Armed Forces of the United States."  See October 29, 2009 letter accepted as notice of disagreement.  This argument by the appellant (via her daughter) is totally without merit.  Nothing in the ARRA nullifies (or renders inapplicable) the provisions of 38 C.F.R. § 3.203.  To the contrary the ARRA specifically 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."  American Recovery and Reinvestment Act § 1002(i)(2).

Under Title 38, United States Code, the Secretary is authorized 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.  See 38 C.F.R. § 3.203.

The certifications of the service department (via the NPRC) are binding on VA; VA has no authority to change or amend these findings.  Duro v. Derwinski, 2 Vet. App. 530 (1992).  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.").

If a change of service department certification is what the appellant seeks, her remedy lies with the service department and not VA.  The appellant has provided no further evidence that would warrant a request for re-certification of her service/nonservice by the service department, and VA must abide by the service department's certification.  See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).  Accordingly, the Board finds the appellant did not have the requisite service and is not a veteran so as to establish eligibility for compensation from the Filipino Veterans Equity Compensation Fund.  As the law is dispositive, the claim must be denied because of the absence of legal merit or entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

The appeal to establish veteran status for the appellant and her entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied.


____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs