Citation Nr: 1302216 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 10-06 732 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) 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 D. Schechner, Counsel INTRODUCTION The claimant/appellant contends that he had recognized Philippine guerilla service, in the service of the United States Armed Forces during World War II. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decisional letter by the Manila RO that denied the his claim seeking compensation from the Filipino Veterans Equity Fund. Because veteran status of the person seeking VA benefits is a threshold requirement for establishing entitlement to such benefit, that is the matter before the Board. In May 2012 the Board remanded the matter for additional development. 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 Armed Forces of the United States. CONCLUSION OF LAW The appellant is not a veteran, and is not eligible to receive a one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 107 (West 2002 & Supp 2009); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING 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). In Palor v. Nicholson, 21 Vet. App. 325 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that in claims where it is first necessary to establish veteran status, proper VCAA notice must be tailored to inform the claimant 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. This claim is limited to statutory interpretation. Therefore, the notice provisions of VCAA do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Notice in this case was provided after the initial adjudication of the claim. However, the matter was readjudicated in March and October 2012, after the claimant had opportunity to respond/supplement the record. Based on evidence the Veteran provided throughout this claim, the RO sought service department verification of his alleged service, and based on the service department certification that he did not have qualifying service, the RO determined that he was ineligible for the benefit sought 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 his 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. There is no indication that the information VA submitted to the service department for verification purposes, in its final attempt, was incomplete or erroneous. VA's duty to assist is met. There is no legal entitlement to the benefit claimed (Filipino Veterans Equity compensation benefits) because the appellant did not have qualifying recognized active military service. Because there is no reasonable possibility that further notice or assistance would aid in substantiating this claim, any VCAA notice or assistance deficiencies are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the appellant's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Under the American Recovery and Reinvestment Act, a 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. Section 1002(j)(2) also provides that VA will administer its provisions in a manner consistent with VA law except to the extent otherwise provided in the statute. As was noted, the critical question here is whether the appellant had the requisite military service/is a veteran. For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial 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 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 submitted does not meet the requirements discussed above, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). 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); see Venturella v. Gober, 10 Vet. App. 340 (1997). The appellant filed his initial claim (for VA compensation benefits) in June 2001, and the claim was denied by a July 2001 decisional letter that found he was not a veteran. He initiated an appeal of the denial, but did not perfect the appeal after a statement of the case was issued. Consequently, the July 2001 decisional letter became final. The instant claim was filed in February 2009, and has been addressed de novo because the claimant provided additional information requiring recertification of his alleged service. He did not submit any document (with either claim) that meets the first requirement of 38 C.F.R. § 3.203(a); he did not submit 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. In September 2010, December 2011, and February 2012 responses, the NPRC in St. Louis certified: "Subject has no service as a member of the Philippine Commonwealth Army, including recognized guerillas, in the service of the United States Armed Forces." The Board noted in its May 2012 remand that the Veteran had given differing information regarding his service. In 2001, he alleged recognized guerilla service but did not identify the unit. In 2009, he first identified his alleged guerilla unit as "G Co. 15th" and stated that his certificate of recognition was given to him by "Gen. Raymundo I. Malapit", which information was not included in any previous service department certification request. The Board also noted that the Veteran had provided multiple permutations and spellings of his name, not all of which had yet been included in a single service department certification request. The Board then noted that in June 2011 the Veteran identified a different unit of service and an alternate date and location of his birth. The Board noted on remand that the RO's request for recertification of service based on the new information provided by the Veteran included incorrect (and chronologically impossible) dates of alleged service, and instructed that a new attempt for re-certification of service was necessary. Based on the new information, in June 2012 the RO sought recertification, including all listed permutations of the Veteran's name, the newly provided date and place of birth, and both units of assignment cited, with the correct dates of alleged service. See Capellan v. Peake, 539 F.3d 1373 (Fed Circuit 2008). . In a September 2012 response, the NPRC in St. Louis stated: "No change warranted in prior negative determination." The service department certification is binding on VA; VA has no authority to change or amend the findings. Duro v. Derwinski, 2 Vet. App. 530 (1992). Accordingly, the Board finds that the appellant did not have the requisite service, and he is not a veteran so as to establish basic eligibility for compensation from the Filipino Veterans Equity Compensation Fund. Since the law is dispositive in this matter, 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 his entitlement to a 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