Citation Nr: 1306547 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 11-17 517 ) 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 Fund. REPRESENTATION Appellant represented by: Gregoria P. Alarcon-Kolber, Agent ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. 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 appellant does not have 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 criteria for entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. § 501(a) (West 2002); 38 C.F.R. § 3.203 (2012); American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA has a duty to notify the claimant of the shared obligations of the claimant and VA in developing his claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); 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 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) (noting that, since veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of 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 January 2010 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 during World War II, he was not legally entitled to payment from the Filipino Veterans Equity Compensation Fund. To the extent that the notification provided to the appellant did not include specific information regarding veteran status, the Board finds that such error is not prejudicial. As set forth in more detail below, the service department has twice 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 during World War II. VA is bound by this certification. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 (noting that the 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 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 (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 could conclude only that because the appellant was 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). VA has also fulfilled its duty to assist the appellant in making reasonable efforts to identify and obtain relevant records in support of the claim. The appellant submitted an affidavit to support his contention that he had recognized service during World War II and it has been reviewed by both the AOJ and the Board in connection with adjudication of the claim. The appellant has not identified any additional records that VA needs to obtain to ensure an equitable adjudication of the claim. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) that, in the context of a Dependency and Indemnity Compensation claim, where service department certification of an appellant's active service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department. The Federal Circuit held that it was a violation of VA's duty to assist not to request service department review of additional or new documents or evidence provided by an appellant concerning a veteran's active service after the initial service department certification. Id., 539 F.3d at 1380-81. The Federal Circuit further held that "the correct interpretation of the governing statues and regulations requires that a claimant's new evidence be submitted and considered in connection with a request for 'verification of service from the service department' pursuant to 38 C.F.R. § 3.203(c)." Id. In this case, two requests were made to NPRC for affirmation of recognized guerrilla service for the appellant. Both requests included a copy of the affidavit submitted by the appellant. Thus, the Board finds that VA has complied with the duty to assist and due process requirements of the claim, and that it may proceed to adjudication of the claim on the merits. II. Analysis The appellant seeks entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. See American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). Section 1002(d) of that Act defines a person eligible for such a payment as 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. The case turns on whether the appellant has the requisite military service. 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 a 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). As noted previously, 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. See Duro, 2 Vet. App. at 532; see also Venturella v. Gober, 10 Vet. App. 340 (1997). Moreover, where the United States service department does not certify the claimant's alleged service in the Philippine Army, VA cannot consider his claim for benefits based on that service. Soria, 118 F.3d at 749; see also Palor, 21 Vet. App. at 331. The appellant contends that he served with the Philippine Commonwealth Army and an organized guerrilla unit during World War II designated as "5th Co. 1st Bn. 7th Regt. Filipino-American Cavite Guerilla Forces" from December 1942 to February 1945. He submitted an Affidavit for Philippine Army Personnel, dated in February 1946, to support his contention. The record shows that the RO first determined that the appellant's name was listed as a common name in the Reconstructed Recognized Guerilla Roster that is maintained by the Manila RO. Next, the RO twice requested a determination from the pertinent U.S. service department as to whether the appellant had service as a recognized guerrilla. In November 2009 and October 2010, the NPRC indicated 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. Both determinations were based on a review of the information submitted by the appellant regarding the dates and nature of his service during World War II and the submitted affidavit. In consideration of the evidence of record, the appellant has not submitted any service document that establishes service as a recognized guerrilla with the U.S. Armed Forces. In February 2011, the Veteran's representative submitted a newspaper article, dated in August 1995, in support of the claim. The article pertains to a lawsuit between Filipino veterans and the U.S. Immigration and Naturalization Service, which is not relevant to the appellant's claim. The appellant and his representative have also submitted their own statements indicating that the appellant did serve with the U.S. Armed Forces during World War II. The Board has considered the appellant's contention; however, VA is bound only by the service department's certification with respect to the appellant's status as a veteran of the U.S. military. In this case, the service department has considered the question of the appellant's military status on several occasions, including a review of the documentation of record. However, each time, a negative response was received. In light of the service department's certification that the appellant did not have service in the Philippine Commonwealth Army or as a recognized guerrilla with the U.S. Armed Forces, the Board finds that the preponderance of the evidence is against the claim; therefore, the claim must be denied. ORDER 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