Citation Nr: 1306774 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-40 448A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE 1. Entitlement to nonservice-connected pension. 2. Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Claimant and E.L. ATTORNEY FOR THE BOARD H. Seesel, 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 has no recognized service. This appeal to the Board of Veterans' Appeals (Board/BVA) is from December 2009 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. FINDING OF FACT The National Personnel Records Center (NPRC) has certified that the claimant 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. CONCLUSION OF LAW The claimant does not have recognized active military service to receive the one-time payment from the FVEC Fund or nonservice-connected pension benefits. 38 U.S.C.A. § 101, 1521, 501(a), 5107 (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5, 123 Stat. 115, 200-202 (enacted February 17, 2009); 38 C.F.R. § 3.3, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). This case relates to eligibility for a nonservice-connected pension and a one-time payment from the FVEC fund which is governed by the American Recovery and Reinvestment Act of 2009. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where the claimant 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."); Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008) (noting 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 to be submitted to the service department for review). In this case, the claimant was provided with the required notification prior to the initial adjudication of his claim in November 2009 and February 2010. The claimant has been represented throughout the appeal and further has been advised by the American Coalition for Filipino Veterans. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). Additionally, during the March 2012 Board hearing, the undersigned VLJ clarified the issues, explained what was required to substantiate the claims, and elicited testimony relevant to the issues on appeal. As such, the actions of the VLJ during the March 2012 Board hearing cure any VCAA defects and satisfy any duty owed to an appellant during a hearing. Moreover, in this case the law, not the facts, are dispositive of this appeal, and the duties to notify and assist imposed by the VCAA are inapplicable to this claim. See Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 2-2004 (March 9, 2004); see also 38 C.F.R. § 3.159 (d) (noting VA will refrain from or discontinue providing assistance in obtaining evidence when the application indicates there is no reasonable possibility that assistance would substantiate the claim, including circumstances where the claimant is ineligible for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility). As set forth in more detail below, the service department has certified that the claimant 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 ("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 certification, any VCAA error is non-prejudicial as the claimant is not entitled to benefit as a matter of law. See Valiao v. Principi, 17 Vet. App. 229, 232 (2003); see also Palor, 21 Vet. App. at 332 ("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."). Law and Analysis The claimant seeks entitlement to a one-time payment from the FVEC Fund and nonservice-connected pension benefits based upon his service in the Philippines during World War II. By way of history, during World War II, various military units of the Commonwealth of the Philippines were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). VA pension benefits shall be paid to wartime veterans who are permanently and totally disabled from nonservice-connected disabilities which are not the result of willful misconduct. 38 U.S.C.A. § 1521(a). The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). A Philippine veteran is limited by law to the award of a defined set of benefits. Service as an Old Philippine Scout prior to October 6, 1945, is included for pension, compensation, dependency and indemnity compensation (DIC) and burial allowances. 38 C.F.R. § 3.40(a). Service prior to July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines in the service of the Armed Forces of the United States (including recognized guerilla service) is qualifying service for compensation, dependency and indemnity compensation, and burial allowance. However, it is not qualifying service for VA pension benefits. 38 U.S.C.A. §§ 107 (a), 1521; 38 C.F.R. §§ 3.40, 3.41. Recognized guerrilla service and reenlistments of Philippine Scouts in the Regular Army from October 6, 1945 to June 30, 1947 are also not included for pension benefits. See 38 U.S.C.A. § 107; 38 C.F.R. §§ 3.7(p), 3.40(b) and (d), 3.203. The one-time payment from the FVEC Fund originated on February 17, 2009, when the President of the United States signed the American Recovery and Reinvestment Act of 2009 (ARRA), authorizing the release of a one-time, lump-sum payment to eligible World War II Philippine Veterans. See Pub. L. No. 111-5, 123 Stat. 115 (2009). An "eligible person" for FVEC benefits is defined 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. See ARRA § 1002(d), Pub. L. No. 111-5. Under 38 C.F.R. § 3.203(a), 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. For pension claims, in order for a document to be accepted without verification it must meet the requirements of 38 C.F.R. § 3.203(a) and also demonstrate service of 4 months or more; or, discharge for disability incurred in line of duty; or, 90 days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability. When the claimant does not submit evidence of service that meets the requirements of 38 C.F.R. § 3.203(a) and (b), VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). In this case, the threshold question for entitlement to nonservice-connected pension benefits and the one-time payment under the FVEC is whether the claimant has qualifying service for VA purposes. The claimant contends he served with the United States Armed Forces of the Far East (USAFFE) and argues that the documents illustrating payment in the 1940s should be sufficient proof of his service. An undated service record reflects the claimant was attached to the following units: C Co. Anti-Sabotage unit from December 1941 until January 1942; 3rd Repl Bn. from April 1945 until June 1945, A Co. 4th Bn. from June 1945 through August 1945; C Co. 8 bn. from August 1945 through October 1945; 1st PT Bn. from October 1945 through December 1945 and 1st Port Bn. from January 1946 until February 1946. In support of his appeal, the claimant has submitted several documents issued by the Republic of the Philippines, a list of officers from the Manila Metropolitan Police dated January 1942, affidavits from friends, a photocopy of his VA hospital identification card, a document entitled United States Army Forces Recovered Personnel Division, and several Orders from the Headquarters Construction Corps of the Philippines and from the Commonwealth of the Philippines Army Headquarters dated throughout 1941, 1942, 1945 and 1946. The claimant has also submitted several documents which specifically state he served with the USAFFE. For example, an August 1984 certification of the Republic of the Philippines Ministry of National Defense noted that the claimant was "called to Active Duty on 20 Dec 41 and inducted into the USAFFE on 23 Dec 41 and asgd with Anti-Sabotage Regt (F-23). Joined the Grla on 1 May 42 and asgd with ECLGA Ramsey (F-23) but his name is not carried in the Approved Revised Reconstructed Grla Roster." An undated Officers and Warrant Officers identification card noted in the remarks section that the claimant was inducted into USAFFE on December 23, 1945. A December 1941 document that indicated the claimant was assigned to the Anti-Sabotage Regiment, Far Eastern University and "will be accepted for service in the armed forces of the United States in the Philippines by officers already in the service of the United States Army Forces in the Philippines pursuant to Par. 2, G.O.No. 46, Hq. USAFFE, dated 18 December 1941." An April 1946 Affidavit for Philippine Army Personnel had checked the boxes next to USAFFE or Reservist and USAFFE-Guerrilla. The claimant also submitted evidence reflecting past payment for his service. An October 1983 document from the Republic of the Philippines, Department of National Defense Veterans Claims Settlement Staff indicated that pursuant to the executive agreement between the Republic of the Philippines and the United States of America, among others, the claimant was entitled to a refund of erroneous deductions of P600.00 that was converted to P1170.00. The claimant provided a copy of a November 1945 War Department Pay and Allowance Account which reflects the United States paid the claimant P 260 for the period November 1, 1945, until November 30, 1945. The claimant also submitted a document from Headquarters, United States Army Forces Philrycom, Recovered Personnel Division that reflected the claimant was a member of the infantry of the Philippine Army and was returned to military control in April 1945. This document indicated the claimant's status was considered to meet the requirements to bring him under the Missing Persons Act and reflected payment of P75 in December 1941 and January 1942 and noted that current pay received was P 3,010.00 for the period from April 1945 to March 1946. The claimant also provided testimony at a March 2012 Board hearing. During that hearing the claimant testified that he did not have a Form DD 214 or equivalent record, such as a 53-55. Mr. E.L. explained that process by which the NPRC verifies service and indicated the NPRC will not provide a positive reply unless the name is added to the 1948 list. Mr .L. felt there was confusion between the Philippine Government and US Government with the creation of the roster back in the 1940s. Mr. L. explained that when the roster was created there were two categories: those who served with the U.S. Army Forces Commonwealth Army who were not included as part of the recognized roster, and those who appeared on the recognized roster which dealt with guerrillas. Mr. L indicated that the current VA Manila and Army policy was to defer to the NPRC certification of service. Mr. L. explained that they need to change the U.S. Army policy for releasing actual records of Philippine Army veterans' service and noted that they had met with the Secretary, the Vice President and the President and indicated the Philippine Ambassador met with the Assistant Secretary of the Army concerning this issue of verifying service of Filipino veterans. Mr. L. testified that the claimant's case was unique as he had copies when he was discharged and records indicating he was paid by the U.S. Government but was still not included in the roster. Mr. L. indicated that he believed the document entitled "United States Army Forces Philyrom Recovered Personnel Division" that was recently found by the NPRC validated the claimant's service. The RO and the claimant have sought verification of service from the NPRC several times over the years. A November 1999 letter from the NPRC to the claimant indicated that the claimant's name was not shown in the official records and archives on file that lists the members of the Philippine Commonwealth Army and recognized guerillas in the service of the United States Armed Forces. After receipt of the claim for benefits, the RO requested information from the NPRC in July 2009. The July 2009 response from the NPRC indicated the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized Guerillas in the service of the United States Armed Forces. A November 2009 response from the NPRC reiterated the July 2009 response. A subsequent May 2010 request to the NPRC included affidavits, orders from the Philippine Army dated in 1941, 1942, 1945 and 1946, a letter from PVAO dated in October 1992, AGO form No. 66-1, the Pay and Allowance Account dated in November 1945, a letter from the 1st Port Battalion dated in January 1946 and order of payment from Veterans War Claims Settlement Staff dated October 1983. After reviewing these documents, the NPRC responded in August 2010 and continued to state that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. All of the above documents were resubmitted to the NPRC in August 2010; however, the November 2010 response was still negative. An April 2011 letter from the NPRC indicated that the claimant's name was not shown in the official records and archives that lists members of the Philippine Commonwealth Army, including recognized guerrillas. The letter explained that in order to establish service, the name must appear in the archives and the claims folder must contain information compatible with the archives. In July 2012, the RO requested the NPRC reverify service based upon review of a record from the U.S. Army Forces Philrycom, and letters from NPRC dated from April 2011 and March 2012. An August 2012 response from the NPRC indicated there was no change warranted in the prior negative determination. In October 2012, the RO sent all of the documents that were submitted during the course of the claim to the NPRC for review. An October 2012 response from the NPRC indicated there was no change warranted in the prior negative determination. A subsequent November 2012 response from the NPRC also indicated that no change was warranted in the prior negative determination. In sum, the NPRC has certified 9 times that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The Board carefully considered the documents reflecting payment from the U.S. Government to the claimant for his service. In VAOPGCPREC 14-94, the General Counsel held that, in determining a period of active service, VA is not bound by a service-department finding of pay entitlement under the Missing Persons Act. VAOGCPREC 14-94 (June 8, 1994). The General Counsel referred to Administrator's Decision No. 972 (1-10-61) that held that a determination of eligibility for service pay under the Missing Persons Act is not a determination that the period for which such pay was authorized was a period of active service for VA benefit purposes. The Administrator's Decision explained that a determination under the Missing Persons Act was made for different purposes and under different statutory criteria. In other words, although the claimant clearly received prior payment from the U.S. Government, that fact alone does not prove he had qualifying service for VA purposes. Significantly, the records reflecting past payment were submitted to the NPRC for consideration under Capellan and even after reviewing these documents, the NPRC continued to find that the clamant did not have verified service. The Board also recognizes that some of the documents submitted by the claimant refer to service in the USAFFE. However, such documents/determinations were provided by the Philippine Army, not the U.S. service department and they are therefore inadequate to establish veteran status. See 38 C.F.R. § 3.203(a). Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that government is not sufficient for benefits administered by VA. Rather, the Department of Veterans Affairs is bound to follow the certifications by the service departments with jurisdiction over United States military records. Duro v. Derwinski, 2 Vet App. 530, 532 (1992). The claimant also submitted affidavits of R.L.E., M.N.H. and J.S.B. who attested that they served with the claimant. The Board has carefully considered these affidavits, but notes that they fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. 38 C.F.R. § 3.203(a)(VA may accept evidence, 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 that evidence is itself a document issued by the service department and VA is satisfied as to its sufficiency, authenticity, and accuracy). The NPRC has duly considered the claimant's application for VA benefits and reviewed the above documentation of the claimant's service, and in response, certified that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas. The Board is not free to ignore the certification of the NPRC as this verification is binding on VA such that VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet App. 530, 532 (1992); see Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department refuses to verify the claimed service, the applicant's only recourse lies within the service department, not with VA). Accordingly, the claimant may not be considered a Veteran for the purpose of establishing entitlement to the one-time payment from the FVEC Fund or nonservice-connected pension benefits. In reaching this conclusion, the Board wishes to emphasize that it remains sympathetic to the claimant and does not question the sincerity of his belief that he is entitled to VA benefits. Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C.A. § 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). Accordingly, the claims for entitlement to the one-time payment from the FVEC Fund and entitlement to nonservice-connected pension must be denied. (CONTINUED ON NEXT PAGE) ORDER The claim of legal entitlement to the one-time payment from the FVEC Fund is denied. The claim for nonservice-connected pension is denied. ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs