Citation Nr: 1301923 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 11-03 130 ) 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 January 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 April 2010, a statement of the case was issued in December 2010, and a substantive appeal was received in January 2011. In his January 2011 appeal, the appellant indicated that he wanted to be scheduled for a hearing before a Member of the Board at his local RO. In September 2011, he informed VA that he wanted a videoconference hearing rather than a Travel Board hearing. He withdrew his request for a Board hearing in writing in March 2012. In an October 2012 statement, the appellant indicated that he was "prepared to fly to Manila to personally defend my claim." According to an October 2012 report of contact, the appellant reported that he did not wish to have a hearing at the RO or before the Board, and asked that his case be forwarded to the Board. Therefore, any hearing request is deemed to have been withdrawn. 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). The Board finds that the notification requirements of VCAA have been satisfied in this case. In an April 2012 letter, VA provided notice of how to establish entitlement to compensation from the Filipino Veterans Equity Compensation Fund, which evidence VA is responsible for obtaining, and what evidence the appellant was responsible for obtaining. In the January 2010 administrative decision 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). The claim was subsequently readjudicated following the issuance of the April 2012 letter in the May 2012 statement of the case. Thus, any deficiencies in the timeliness of this notice letter would not be prejudicial. In any event, 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 four service department certifications of the claimant's alleged active service (in September 1986, September 2009, November 2010, and April 2012). The two 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 April 2012. 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 in the Commonwealth Army, Military Police Command of the Philippine Army, from May 1945 through July 1946. VA first attempted to verify the appellant's status in September 1986, when it submitted a request containing the appellant's name, service number, and dates of service to the National Personnel Records Center (NPRC). A September 1986 response stated that "[n]o record has been located." In May 2009, following the appellant's application for benefits, the RO again 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. It identified his branch of service as the United States Armed Forces in the Far East (USAFFE) and noted that his unit of assignment was the Military Police Command. In September 2009, the 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 January 2010, the RO denied the appellant's claim on the basis that the service department found no evidence that the appellant had served as a member of the Commonwealth Army of the Philippines, including the recognized guerillas, in the service of the Armed Forces of the United States. The appellant filed a notice of disagreement in April 2010, and at that time reiterated that he had served in the Military Police Command of the Philippine Army. He also noted that he had a Copy of Orders from the Provost Marshal of the United States Army Forces Western Pacific dated March 19, 1946, transferring him from Manila to Mindanao and authorizing him to travel by military aircraft from Manila to Bukidnon, Mindanao. During the course of this appeal, the appellant has furnished a number of documents, with the submissions featuring documents from the Armed Forces of the Philippines; the Military Police Command of the Philippine Army; the United States Army Forces-Western Pacific, Office of the Provost Marshal; a Southwest Pacific Area Air Travel Authority authorization; and identification cards from the Philippines, California, and the United States Department of Veterans Affairs. Following each submission, 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 two most recent verifications requests to the NPRC 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. The first of these recertification requests was made in September 2010. At that time, the RO requested re-certification of the service department's findings in order to ensure consideration of new military service records, a new alternate spelling of the appellant's name, and new service numbers. The RO noted that the appellant's name is listed as a common name in the Reconstructed Recognized Guerilla Roster maintained by the Manila RO. In its request, the RO included the information provided by the appellant. In November 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 April 2012, the RO again requested re-certification of the service department's findings, to ensure consideration of new evidence and a new alternate spelling of the appellant's name. The RO noted that the appellant's name is not listed as a common name 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 2012, 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. 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). The law specifically states the following: 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 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, shall not be deemed to have been active military, naval, or air service for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the Armed Forces, except benefits under- (1) contracts of National Service Life Insurance entered into before February 18, 1946; (2) chapter 10 of title 37; and (3) chapters 11, 13 (except section 1312(a)), 23, and 24 (to the extent provided for in section 2402(a)(8)) of this title. 38 U.S.C.A. § 107(a)(1-3)(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 four 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. A majority of the documents submitted by the appellant were not issued by the United States service department, and do not 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. The Board notes that the appellant's submitted documentation includes a Copy of Orders from the Provost Marshal of the United States Army Forces Western Pacific. As noted above, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant 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). In this case, the document in question does not satisfy the second requirement, as it does not contain the needed information as to length, time and character of service. Thus, it had to be submitted to the NPRC for verification. As noted above, the NPRC has considered the evidence that was submitted by the appellant, including the Copy of Orders from the Provost Marshal, and found that this document did not warrant a change in the prior determination that the appellant did not have the requisite service. 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"). The Board has also considered the appellant's contention that his application for citizenship was granted based on his wartime service. The appellant has submitted newspaper articles describing the decision of a U.S. District Court judge to grant the applications of several Philippine citizens, including the appellant himself, for Naturalization. According to the articles, the applications had been denied by the INS because the agency had been unable to verify the applicants' World War II military service through the service department. The article explains that the judge accepted the documents generated by the Philippine government, particularly given the testimony of a Colonel who alleged that thousands of deserving guerillas were purposefully omitted from the rosters maintained by the service department to, among other reasons, save money. The Board has considered the appellant's contention that his application for Naturalization was granted based on those documents, and that the U.S. District judge mentioned above found that Philippine service documents can suffice in lieu of U.S. service documents. The judge's determination was affirmed by the 9th Circuit Court of Appeals in Almero v. I.N.S., 18 F.3d 757 (9th Cir. 1994). The Board points out, however, that the appellant's application for Naturalization was granted based on laws that are specific to U.S. citizenship, and which do not address the concept of veteran status for VA purposes. Neither the Immigration and Naturalization Act of 1952 nor the Immigration Act of 1990 establish that a determination under those Acts as to a person's service for Naturalization purposes is binding on VA for VA purposes. The same is true as to the determination in Almero. Almero was interpreting laws pertaining to service for Naturalization purposes, and not pertaining to veteran status for VA purposes. VA was not a party to Almero, and the determination in Almero is not binding on VA. Moreover, Congress acted in 1997 to nullify Almero by amending § 405 of the Immigration Act of 1990 to specifically require certification by a U.S. service department or responsible executive agency of a claimant's veteran status in a Naturalization application. See Pub. L. No. 105-119, Title 1, § 112(d), 111 Stat. 2460 (1997) (codified at 8 U.S.C.A. § 1140 Note). In other words, it is no longer the case even in Naturalization applications that veteran status can be established through documents generated by the Philippine government. The Board also points out that two main courts having jurisdiction over claims arising from VA determinations, namely the United States Court of Appeals for Veterans Claims and the Federal Circuit, have never extended Almero to determinations of veteran status under Title 38, United States Code. Finally, in a May 2012 letter, the appellant requested that VA contact National Service Life Insurance (NSLI) to verify his service. He noted that he had applied for insurance in June or July 1945 and kept paying his premium for a few months until he was unable to afford to continue doing so. He contends that "[t]he fact that NSLI accepted my application for insurance and even encouraged me to continue paying my premiums positively shows that I was a member of the US Armed Forces West Pacific. Otherwise, my application for insurance would have been rejected." The appellant essentially contends that the fact that he was able to obtain an NSLI policy demonstrates that he had requisite service to qualify for other benefits, including the Filipino Veterans Equity Compensation Fund payment. The Board notes, however, that 38 U.S.C.A. § 107(a)(1) expressly lists NSLI benefits as an exception to the prohibition of benefits to Filipino veterans with qualifying service as described in 38 U.S.C.A. § 107(a). Thus, the fact that the appellant was approved for an NSLI policy does not confer entitlement a one-time payment under the Filipino Veterans Equity Compensation Fund. In short, 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