Citation Nr: 1305281	
Decision Date: 02/13/13    Archive Date: 02/21/13

DOCKET NO.  12-02 685	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Whether the appellant is a veteran for the purpose of establishing entitlement to one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.


WITNESSES AT HEARING ON APPEAL

Appellant and Son


ATTORNEY FOR THE BOARD

M. Hannan, 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 claimant/appellant alleges he is a deserving Philippine guerrilla veteran of World War II.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decisional letter issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines in which the appellant's claim seeking compensation from the Filipino Veterans Equity Compensation (FVEC) Fund was denied.  

The appellant has represented himself throughout the course of this appeal.

The question of "veteran" status of the person seeking VA benefits is a threshold requirement for establishing entitlement to such benefits.  Therefore, the issue on appeal before the Board is as reflected on the title page.

In December 2012, a videoconference hearing was held before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.  In connection with that hearing, the appellant submitted evidence directly to the Board.  This evidence consisted of copies of affidavits which were duplicative of records in the claims file.  The appellant also submitted a written waiver of RO consideration of the additional evidence.  See 38 C.F.R. §§ 19.37, 20.1304.  Therefore, the case is ready for appellate review.


FINDING OF FACT

The service department by way of the National Personnel Records Center (NPRC) 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 United States Armed Forces.


CONCLUSION OF LAW

The appellant is not a veteran under applicable United States law, and is not eligible for the one-time payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 107 (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duty to Notify and Assist

VA's duty to notify and assist claimants in substantiating their claims for VA benefits has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In Palor v. Nicholson, 21 Vet. App. 325 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, in claims where it is necessary to first establish veteran status, proper VA notice must be tailored to also inform claimants of the information or evidence necessary to prove the element of veteran status, what information the claimant/appellant is responsible for providing, and what information VA will seek to obtain concerning that element.

A close review of the claims file shows the appellant was advised of VA's duties to notify and assist in the development of his claim in an April 2010 letter from the RO (prior to its initial adjudication in June 2010).  The case was thereafter readjudicated by means of a Statement of the Case (SOC) issued in December 2011, which provided the appellant with notice of what evidence was needed to show entitlement to FVEC benefits; the SOC also addressed the types of evidence VA was responsible for getting, as well as the types of evidence the appellant was responsible for.  See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).

The Board finds that the appellant has not been prejudiced by any notice defects.  The appellant has not alleged that he was prejudiced because he did not receive notice of what was needed to substantiate his claim, and the Board's review of the record doe not discloses prejudicial error in the development of this case.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The record reflects that, based on information the appellant provided in his March 2009 claim for benefits, in copies of affidavits from the appellant's former commanding officers and others, along with documents from the Philippine Veterans Board/ Philippine Veterans Affairs Office, the RO sought service department verification of the appellant's claimed service by way of the National Personnel Records Center (NPRC) and, based on service department certification that he did not have qualifying service, determined that the appellant is ineligible for VA benefits as a matter of law.  When a claimant is ineligible for VA benefits as a matter of law based on the service department's refusal to certify the alleged 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 (noting that "given the binding nature of the U.S. service department's certification . . . a remand for further development could not possibly change the outcome of the decision").

The RO sought certification of the appellant's military service in November 2011.  There is no indication that information submitted by VA to the service department for the purposes of certifying his service was erroneous or incomplete.  The November 2011 request included copies of the aforementioned documents submitted by the appellant.  That request also noted that the appellant was listed in the reconstructed Recognized Guerrilla Roster (RRGR) maintained at the RO.  The appellant has submitted copies of documents that indicate he was inducted into Vera's Tayabas Guerrillas in October 1943, and that he was a member until September 1945.  The NPRC considered those documents before sending a negative answer in December 2011, and again in September 2012.  Furthermore, the RO's November 2011 request for certification from the service department was a follow-up to a previous request that had yielded a negative response from the NPRC in October 2011.  See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (re-certification when there is newly received relevant evidence since the negative certification).

Therefore, VA's duty to assist has been met.  Accordingly, the Board will address the merits of the claim.

II.  The Merits of the Appeal

The appellant contends he is a deserving Philippine guerrilla veteran of World War II and that he served with recognized Philippine Guerrillas (Vera's Tayabas) from October 1943 to September 1945.  Testimony to that effect was presented during his December 2012 Board videoconference hearing.  

In his application for one-time payment from the Filipino Veterans Equity Compensation Fund, the appellant listed his full name and provided his birthplace and date of birth, his dates of service and the unit in which he served.  He also provided the names of his spouse, father, and mother.  

Under the American Recovery and Reinvestment Act, a new 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.

For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . ."  However, nothing in this 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."  

For purposes of establishing entitlement to VA 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 under 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).  When the claimant does not submit evidence of service or the evidence does not meet the requirements of this section, the VA shall request verification of service from a service department.  38 C.F.R. § 3.203(c).

The appellant has submitted copies of a June 1960 Philippine Veterans Board document dated in May 1946, in which he was found to be a deserving guerrilla entitled to veteran's preference, as well as copies of affidavits from a mayor and various commanding officers and a May 2010 document from the Philippine Veterans Affairs Office that indicate he had been a member of Vera's Tayabas Guerrillas and that he was discharged in September 1945, but was not included on the recognized roster although he was classified by the Philippine Government through the Philippines Veterans Affairs Office as a deserving guerilla.  None of the supporting documents submitted by the appellant was issued by a U.S. service department.  

The appellant has not submitted any documents that meet the first requirement of 38 C.F.R. § 3.203(a).  He has not submitted 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.  Therefore, VA sought service department verification as to whether the appellant served in the U.S. Armed Forces in the Philippines (and specifically whether he has had guerrilla service as alleged).  Although the RO noted that the appellant's name was listed in the Reconstructed Recognized Guerrilla Roster maintained by the RO in its requests for information about the appellant sent to the service department, the service department (via the NPRC) certified, in September 2012, that it had no record of the appellant serving as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  The NPRC had previously certified this in October 2011, and in December 2011.  This certification is binding on VA, and VA has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet. App. 530 (1992).  

It is important for the appellant to understand that 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.  If a change of service department certification is what the appellant seeks, his remedy lies with the service department and not with VA.  See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).

The appellant 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.  Hence this appeal must be denied. 

The appellant has provided no further evidence that would warrant a request for re-certification of his service/nonservice by the service department since the last re-certification of September 2012, and VA must abide by the service department's certification.  See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994); Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (re-certification when there is newly received relevant evidence since the negative certification).  Accordingly, the Board finds the appellant did not have the requisite service and is not a veteran under applicable United States law so as to establish 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 one-time payment from the Filipino Veterans Equity Compensation Fund is denied.




____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs