Citation Nr: 1305437 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 11-18 661 ) DATE ) ) 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 a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The appellant contends that he served in the Philippine Commonwealth Army, to include recognized guerrilla 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 July 2010 decisional letter by the Manila Regional Office (RO) that denied the appellant's claim seeking compensation from the Filipino Veterans Equity Fund. Because veteran status of the person seeking benefits is a threshold requirement for establishing entitlement to such benefit, that is the matter before the Board. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant seeks entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. 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(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 own provisions in a manner consistent with VA law except to the extent otherwise provided in the statute. 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 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). The United States Court of Appeals for Veterans Claims (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 United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Venturella v. Gober, 10 Vet. App. 340 (1997). In Capellan v. Peake, 539 F.3d 1373, 1382 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit found that VA must ensure that service department verifications as to whether an individual served in the United States Armed Forces are based on all available evidence, including any evidence of service that a claimant submits to VA. In the present case, the appellant contends that he has two periods of qualifying service. In particular, he contends that he served as part of the guerilla forces from April 1943 to March 1945, and as a part of the Army of the Commonwealth of the Philippines from April 1945 to December 1945. In support of his claim, the appellant has submitted several documents. The source of these documents is unclear, however, they do appear to be, at the very least, copies that have not been altered. A December 1945 document entitled "Special Orders" shows that the appellant was among those ordered to a school in December 1945. A November 1947 Statement of Service Record from the Republic of the Philippines 20th Police Headquarters notes induction into the service of the Philippine Army in April 1945. The appellant also submitted a Military Police Training School certificate noting "Military Police Command USAFFE." An Enlistment Record noting military police duty with prior guerilla service is also of record, as well as an honorable discharge certificate from the Commonwealth of the Philippines, Philippine Army. A December 1945 letter listing the Veteran among those discharged from Commonwealth of the Philippines Army Headquarters, APO 501, is also of record. A copy of a September 1985 affidavit submitted in support of the Veteran's U.S. citizenship application also shows that he was paid as a Private from April 1945 to July 1945 and as a Private First Class from July 1945 to December 1945. This document was signed by the Assistant Adjutant General of the Armed Forces of the Philippines. Three affidavits from individuals were also submitted into the record, which show these individuals' personal recollections of serving with the Veteran in the Philippine Army and in the Guerilla Forces of the Commonwealth of the Philippines. During the course of this claim's development, the RO has twice requested verification of the appellant's service from the National Personnel Records Center (NPRC). It does not appear that the NPRC considered the entire body of evidence when rendering its determinations as to whether the Veteran had qualifying service. An October 2009 request for information (VA Form 21-3101) correctly noted the Veteran's name, service dates, and units, but does not indicate that a review of the evidence submitted by the Veteran was requested. A May 2010 follow-up VA Form 21-3101 shows that the RO enclosed "a copy of affidavits of two USAFFE members from the same unit" and asked, "Does this warrant a change in your negative prior negative service certification?" The NPRC provided negative responses to both requests, but failed to review and address the many documents submitted by the appellant in support of his claim. In light of Capellan v. Peake, id., the Board finds that this evidence should be forwarded to the NPRC to determine whether the appellant's service records provided support his claim that he has qualifying service in the Armed Forces of the United States. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send a request to the NPRC for an attempt at verification of the appellant's alleged military service, along with the various affidavits and service documents listed in the body of the remand, above. Please include a listing of all documents provided from the RO to the NPRC on the request. The response received should be associated with the claims file. 2. After completing remand directive 1 and undertaking any additional development deemed appropriate, the RO should readjudicate this claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the appellant the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).