Citation Nr: 1301375 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-36 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to payment from the Filipino Veterans Equity Compensation Fund ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION 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). The appellant alleges that he served in guerilla forces in service of the Armed Forces of the United States (USAFFE) during World War II. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. FINDING OF FACT The appellant had no service as a member of the Philippine Commonwealth Army, including in the recognized guerrilla forces in the service of the Armed Forces of the United States. CONCLUSION OF LAW The criteria for entitlement to payment from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. §§ 501(a), (West 2002 & West Supp. 2012); 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 FINDING AND CONCLUSION 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). 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. 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). Section 1002(d) of the American Recovery and Reinvestment Act of 2009 provides that a person is eligible for the payment if he or she had qualifying service which is service 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, 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: 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 VA will request verification of service from the service department. 38 C.F.R. § 3.203(c). Prior to receipt of his current claim in February 2009, the appellant had filed a claim in October 1987 for VA disability compensation benefits. Documents he submitted at that time included a discharge from the Philippine Army, a Form 22-A, and a P.A. A.G.O. Form 23. Of record is a response to a request for information as to the appellant's service from the U.S. Army Reserve Personnel Center, dated in June 1988 indicating that a prior negative report had been furnished in January 1966 under a different claim number and no change was warranted. In May 2009, following receipt of his February 2009 claim, the RO requested from the National Personnel Records Center (NPRC) verification of the appellant's service. That request indicates that the Form 23 was attached. That request includes alternate spellings of the appellant's name, including the spelling that he specified as correct in a September 2009 statement. The RO requested that the NPRC furnish complete AGUZ Form 632 and furnish all extracts of Form 23 executed prior to June 30, 1946. In August 2009, the NPRC responded 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. Another response from the NPRC was received in November 2009 with the same conclusion In October 2011, the RO again requested from the NPRC verification of the appellant's service. With that request, the RO submitted a Certification from the Office of the Adjutant General of the Armed Forces of the Philippines, a Declaration of the Applicant, a physical examination report, and a PA AGO Form 23, as well as a proof of service signed by "R.C." In December 2011 VA received a response from the NPRC with the same conclusion as the previous responses. In June 2012, the RO again requested from the NPRC verification of the appellant's service. With that request, the RO submitted a copy of the Discharge from the Philippine Army and the appellant's VA Form 9, substantive appeal. In September 2012, the NPRC responded with the same conclusion as the previous responses. None of the documents submitted by the appellant are U.S. service department records. He has presented no evidence that meets the requirements of 38 C.F.R. § 3.203(a) and the service department has verified that he did not have service which would qualify him for the benefit sought. VA is bound by that determination. His own assertions do not meet the requirements of 38 C.F.R. § 3.203(a). Now the Board turns to due process matters. In his November 2009 notice of disagreement the appellant requested that he be allowed to make a personal appearance and/or be interviewed. The RO scheduled him for a hearing. An April 2010 statement from the appellant indicates that he reported for an informal conference in lieu of the formal hearing. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, the threshold question, and indeed, the only question, is whether the appellant had qualifying service. A letter was sent to the appellant in October 2011 providing him with notice as to what was required to verify his service. The RO readjudicated his claim in a September 2012 supplemental statement of the case, thus curing the timing defect in this notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In summary, the preponderance of the evidence shows that the appellant did not have any service that would qualify him for payment from the Filipino Veterans Equity Compensation Fund. His appeal must therefore be denied. There is no reasonable doubt to be resolved in this case. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs