Citation Nr: 1303103	
Decision Date: 01/30/13    Archive Date: 02/05/13

DOCKET NO.  11-24 450	)	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 payment from the Filipino Veterans Equity Compensation (FVEC) Fund.  


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel


INTRODUCTION

The appellant contends that he had active service during World War II in the Philippine recognized guerrilla forces.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.

In his August 2011 VA Form 9, the appellant indicated that he would like to be scheduled for a hearing before a Veteran's Law Judge at the RO (Travel Board).  He was scheduled for such a hearing on July 13, 2012.  In a statement dated July 13, 2012.  It was reported that he had an informal conference and wanted to withdraw his request for a Travel Board hearing.  See 38 C.F.R. § 20.704(e) (2012).

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 not certified that the appellant had any qualifying service as a member of the Philippine Commonwealth Army, including as a recognized guerrilla, in the service of the Armed Forces of the United States; and there is no other satisfactory evidence of such service.


CONCLUSION OF LAW

The appellant does not have recognized active military service for the purpose of obtaining the one-time payment from the FVEC Fund.  38 U.S.C.A. §§ 107, 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act (ARRA) § 1002, Pub. L. No. 111-5 (Feb. 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) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 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 appellant was provided VCAA notice in a letter from the RO dated in April 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).  Although the appellant's notice was provided after the initial adjudication, the timing deficiency was cured by readjudication of the claim in the supplemental statement of the case (SSOC) issued in November 2012.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

The RO assisted the appellant in substantiating his claim by making multiple attempts to obtain service department verification of his claimed service.  There is no indication of any outstanding evidence that could substantiate the claim.  The claim does not involve a medical question.  Hence an examination or medical opinion is not required.

II.  FVEC Fund Eligibility

Under the ARRA, a one-time benefit is provided for certain Philippine veterans to be paid from the FEVC Fund.  ARRA § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).  Payments for eligible persons will be either in the amount of $9,000.00 for non-United States citizens or $15,000.00 for United States citizens.  For eligible persons who accept a payment from the FEVC, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service."  However, nothing in the 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."  

To be eligible for compensation under the FEVC fund, a claimant must have verified 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 or in the Philippine Scouts under § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538) and was discharged or released from such service described under conditions other than dishonorable.  See ARRA § 1002(d), Pub. L. No. 111-5 (enacted February 17, 2009).  

For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Report of Separation from the Armed Forces of the United States (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 United States 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.  

If a claimant does not submit evidence of military service, or the information is insufficient, VA must request the information from the service department.  38 C.F.R. § 3.203 (2012).  Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service departments, and the VA has no authority to amend or change their decision.  The United States Court of Appeals for Veterans Claims has held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon the VA.  See Spence v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).

In the present case, the appellant did not submit either a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203.  

In support of his claim, the appellant submitted several documents, including, in relevant part, a July 1997 certification of service from the Offices of the Adjutant General of the Armed Forces of the Philippines, conveying that he had the military status of a guerilla fighter in the Peralta Guerilla "A" Company, First Battalion of the 63rd Infantry (F-23), with a process date of May 22, 1945; a Philippine Veterans Affairs Office identification card; a copy of a World War II Veteran Information Slip for Issuance of Multi-purpose Identification Card, showing service in the "A" Company, 63rd Infantry; a July 1997 Application for Old Age Pension from the Philippine Veteran Affairs Office; a copy of an Affidavit for Philippine Army Personnel in which the appellant affirmed in January 1946, that he had been a civilian guerilla and part of the Third Platoon, Fourth Replacement Company of the Sixth Replacement Battalion, serving in the Peralta Guerilla "A" Company First Battalion of the 63rd Infantry from April 1944 to May 1945, with a process date of May 22, 1945; and a copy of another Philippine Veterans Affairs Office identification card indicating that he was a World War II veteran.  

The appellant additionally submitted multiple statements and reported to an informal RO conference in which he reiterated his contentions that he had qualifying service as in the guerilla forces during World War II.  

Based on the information and evidence provided by the appellant, the RO made multiple attempts to verify his service.  In April 2009, the National Personnel Records Center (NPRC) provided certification that the appellant did not have service as a member of the Philippine Commonwealth Army, including as a recognized guerrilla in the service of the United States Armed Forces.  This certification was pursuant to a reported unit of assignment of Peralta Guerrilla "A" Company, First Battalion, 63rd Infantry, from April 1944 to May 1945.  

Notably, where service department certification of active service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008).  

In accordance with Capellan, the RO made three additional attempts to verify the appellant's service based on slight variances in his unit of assignment.  The reported units of assignment were as follows: the Third Platoon Replacement Company of the Sixth Replacement Battalion, from April 1944, to May 1945; the Third Platoon, Fourth Company of the Sixth Replacement Battalion, 6 MD, from March 1945 to January 1946; and the "A" Company, First Battalion of the 63rd Infantry Regiment, Six MD, from March 1945 to December 1946.  

Negative responses were provided by the National Personnel Records Center (NPRC) for each of these attempts, however, in September 2010, April, 2012, and October 2012, respectively.  These certifications indicated that the appellant had no service as a member of the Philippine Commonwealth Army, including as a recognized guerrilla in the service of the United States Armed Forces. 

Based on the foregoing, the Board finds that the appellant has not submitted acceptable evidence of his active service in accordance with the provisions of 38 C.F.R. § 3.203.  Moreover, although the RO made multiple attempts to obtain certification from the service department, the NPRC provided certification on each occasion, indicating 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.  These determinations are binding on VA.  See Capellan, 539 F.3d 1373 (if the service department refuses to verify the claimed service, the applicant's only recourse lies within the service department, not with VA).  

As satisfactory evidence of qualifying service has not been obtained; the weight of the evidence is against the claim.  The appellant may not be considered a veteran for the purpose of establishing entitlement to a one-time payment from the FVEC Fund.  Accordingly, the benefit sought on appeal must be denied. 


ORDER

Entitlement to a one-time payment from the FVEC Fund is denied.  



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs