Citation Nr: 1305262 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 10-22 624A ) 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 M. Carsten, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In August 2011, the appellant was notified that a personal hearing was scheduled in September 2011 at the RO. Information in the claims folder indicates that the appellant appeared at the designated time and was accompanied by his son. It appears that an informal hearing was held in lieu of a formal RO hearing. The substance of the informal hearing is documented in a VA Form 21-4138 dated September 12, 2011. The Virtual VA eFolder has been reviewed. Additional documents pertinent to this appeal are not shown. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 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. 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 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Duty to Notify Under the 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). 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 by the VCAA 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) ("Since veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of VCAA notice concerning proof of veteran status is necessary in most, if not all, cases."). In this case, although the appellant was not provided with the required notification prior to the initial adjudication of his claim, the Board finds that no prejudice has resulted. In the November 2009 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. Because NPRC had 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, he was not legally entitled to payment from the Filipino Veterans Equity Compensation Fund. Additionally, in a May 2011 letter, the RO advised the appellant of the information and evidence needed to substantiate and complete a claim for one-time payment from the Filipino Veterans Equity Compensation Fund, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1). The May 2011 letter also included the additional notification requirements imposed by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuing this letter and affording the appellant the opportunity to submit additional evidence and argument, the RO reconsidered his claim in November 2011 and November 2012 Supplemental Statements of the Case. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); Medrano v. Nicholson, 21 Vet. App. 165 (2007); 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, is sufficient to cure a timing defect). As discussed below, the service department certified on five separate occasions that the appellant did not have the requisite service for the benefit sought. VA is bound by this certification. 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). In light of the binding certifications, any VCAA notification error is non-prejudicial as the appellant is not entitled to the benefit sought as a matter of law. See Valiao v. Principi, 17 Vet. App. 229 (2003); see also Palor, 21 Vet. App. at 332-33 ("Therefore, in assessing whether the appellant was prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status, the Court can conclude only that because the appellant is currently ineligible for VA benefits as a matter of law based on the [the service department's] refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error."). Duty to Assist Under the VCAA, VA also has a duty to assist claimants in the development of a claim. This includes assisting the claimant in procuring service medical records and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159. A review of the record indicates that all necessary evidence relative to this claim has been obtained and associated with the claims file. As set forth in more detail below, 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. The initial negative certification provided in connection with the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund was in September 2009. Throughout the course of this appeal, the appellant submitted additional documentation in support of the claim. Following receipt of the evidence, the RO again contacted the service department and requested reverification of service for the appellant on 4 additional occasions. See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008) (holding that the duty to assist requires that new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review). In requesting this recertification, the RO provided NPRC with additional pertinent evidence, including copies of the documentation submitted by the appellant. Since the most recent negative response in September 2012, the appellant has produced no additional information which would warrant another request to the NPRC. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. No reasonable possibility exists that any additional assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board further notes that the Court has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As set forth in more detail below, the appellant's appeal must be denied as a matter of law. Background In February 2009, the appellant submitted an application for one-time payment from the Filipino Veterans Equity Compensation Fund. At that time, he reported service in the Commonwealth Army. Specifically, that he served in the "67 Inf PC MD (F-23)" from July 1941 to October 1945. In May 2009, the RO contacted the service department and requested verification of his reported military service. In its request, the RO included the information provided by the appellant. The RO also noted that the appellant's name was not listed on the Reconstructed Recognized Guerrilla Roster maintained by their office. In September 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. In November 2009, the RO denied the appellant's claim on the basis that the service department had certified that he did not have the requisite military service to establish eligibility therefore. The appellant subsequently perfected an appeal of this decision. In June 2010, the RO received a statement from the appellant's daughter, which was acknowledged by the Veteran. The statement argues that the appellant served in the United States Armed Forces of the Far East. In support of this contention, affidavits were submitted from L.G. and P.C. It was further argued that the reason he had no official record was because all of the records were burned during the Japanese invasion. In January 2011, the appellant submitted an additional statement. He also submitted a copy of an Affidavit for Philippine Personnel, a March 1994 Certification from the Armed Forces of the Philippines, and affidavits from I.G., P.C., L.J.L., and L.P.L. Based on the additional evidence received, in May 2011, the RO again contacted the service department and requested reverification of the appellant's reported military service. In its request, the RO included copies of the additional documentation. In June 2011, NPRC responded that no change was warranted in the prior negative service certification. Following the receipt of additional evidence, in September 2011, the RO requested reverification. In its request, the RO forwarded copies of relevant evidence as follows: VA Form 21-4138 (appears to be the appellant's statement submitted at the informal hearing, which indicates he used an alias during military service); Certification signed by an Infantry Captain, and Military Service Certification. In October 2011, NPRC again 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. Following the receipt of additional evidence, in May 2012, the RO requested reverification. In its request, the RO forwarded copies of relevant evidence as follows: appellant's letters dated in May 2010 and December 2011; Certification from the Armed Forces of the Philippines dated March 16, 1994 and May 15, 1992; Affidavit for Philippine Army Personnel (PA AGO Form 23); Enlistment Record from the Army of the United States (WD AGO 22); Certificate of Honorable Discharge; military service history signed by Major R.E., and Certificate of Military Service from AGCS 201. In May 2012, NPRC responded that no change was warranted in the prior negative determination. The Veteran submitted additional information and in July 2012, the RO again asked for reverification. In its request, the RO forwarded copies of relevant evidence as follows: Certification from the Office of the Adjutant General dated April 24, 2012; Statement in Support of Claim dated in April 2012 (alleging service in the Commonwealth Army and the recognized guerilla); copy of the appellant's passport; and a copy of his certificate of naturalization. In September 2012, NPRC responded that there was no change warranted in the prior negative determination. 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 U.S. Department of Veterans Affairs. 38 U.S.C.A. § 107 (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. 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. 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 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. 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) (2012). 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."). Analysis As set forth above, the NPRC has reviewed the extensive documentation submitted by the appellant and has certified on multiple occasions that he had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces. VA is bound by that certification. The Board has also 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. 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. In making this determination, the Board acknowledges the Enlistment Record Army of the United States (WD AGO Form 22) but notes that this does not establish qualifying World War II service for the type of benefit sought. The Board further notes that the NPRC has considered the information contained in that document and nonetheless 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. Again, the Board is bound by this 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"). To the extent that the appellant is arguing that NPRC's negative certification is erroneous, or that the service department has incomplete or inaccurate information as to his service, the Board encourages the appellant to pursue the correction of his service information. See e.g. Cahall v. Brown, 7 Vet. App. 232, 237 (1994) (noting that if the appellant disagrees with the information contained in service department records, his remedy, if any, must be pursued with the Army Board for the Correction of Military Records). The Board has considered the appellant's various arguments, to include his current status as a citizen of the United States. The Board sympathizes with the appellant; however, as the service department has certified that he 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. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs