Citation Nr: 1306880 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-33 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The appellant testified at a Board videoconference hearing held in December 2012. He submitted evidence at that time, along with a waiver of initial RO consideration of that evidence. 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). 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 & West Supp. 2012); American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 5103 (West 2002), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. The appellant was not provided with 38 U.S.C.A. § 5103(a)-compliant notice in this case. Nonetheless, the Board finds that any presumption of prejudice has been rebutted by the appellant's demonstration of actual knowledge of the information and evidence necessary to substantiate his claim. This case turns on whether he had the requisite qualifying service in the recognized guerillas. Throughout the appeal the appellant clearly articulated his contention that he served with a recognized guerilla unit (i.e. 1st Mapandan Company LGAF APO 198), submitting a document in support of his claim. He clearly is aware that relevant evidence in this case involves evidence that the unit in which he served was one recognized by the appropriate U.S. service department. The Board notes that the appellant does not contend that he served in the U.S. Armed Forces proper. Given that the appellant has presented argument and actively submitted evidence relevant to the criteria for establishing his claim, the Board finds that he has not been prejudiced by the failure to provide him with notice as to the information or evidence necessary to substantiate the claim. In addition, the Board is unaware of any outstanding evidence that would require an explanation of the respective responsibilities of he and VA in obtaining that evidence. The instant case involves the legal issue of whether his service qualifies for payment from a fund established by Congress. The RO has obtained relevant information from the service department, and the appellant has obtained records pertaining to his service. He is well aware of the information and evidence necessary to substantiate his claim, and has not suggested that any pertinent outstanding evidence remains. The Board consequently finds that he has not been prejudiced by VA's failure to notify him of the allocation of evidence-gathering responsibilities in this case. As to VA's duty to assist the appellant, again, there is no suggestion by the appellant or the record of any outstanding evidence. VA obtained a determination by the service department, and the appellant has submitted his service documents. The Board notes that the United States Court of Appeals for the 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 a veteran'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 in Capellan 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. See Capellan, 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, the RO submitted the appellant's Form 23 (the only service document he has provided) to the appropriate service department, and received a determination from that agency in December 2009. Since that time, he has submitted duplicate copies of the Form 23 (including in association with his Board hearing). He has also submitted copies of his application for Naturalization which references his account of service, as well as a joint affidavit by two "co-soldiers." Neither the application for Naturalization nor the joint affidavit purports to be a service document, and neither provides any information not already contained on the Form 23 already reviewed by the service department. VA has complied with Capellan. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A (West 2002), or 38 C.F.R. § 3.159 (2012). Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The appellant seeks entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. See the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, section 1002. 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 critical issue involved in this case consequently is 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 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 U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Venturella v. Gober, 10 Vet. App. 340 (1997). The appellant contends that he served with the organized guerilla unit designated as 1st Mapandan Company, LGAF APO 198, from March 1943 to January 1946. He testified in December 2012 that he is receiving monies from the Social Security Administration, and that he is receiving monies from the Philippine government based on his status as a "Veteran." He also maintains that he was allowed to immigrate to the U.S. and become a Naturalized citizen based on his service as a Recognized Guerilla. In connection with his claim he has submitted a service document generated by a Philippine government source, namely a Form 23 completed by the appellant in January 1946 indicating that he served with 1st Mapandan Company LGAF APO 198, as well as "51 FA 6 Div"; 1st Mapandan Pang Company; "63 Inf 32 Div"; 20 Fox Co. 6 Div"; "6 DIV Q M Co.; and "Hq Serv Co 2 Regt". The dates of the service span from March 1943 through January 1946. The Form 23 indicates that the appellant was a "Civilian Guerilla", as distinguished from the other choice of "USAFFE-Guerilla." The appellant has also submitted numerous documents pertaining to his Naturalization as a citizen of the United States. On his actual application for Naturalization, the appellant indicated that he served in the United States Armed Forces as a guerilla. He also submitted a July 2010 joint affidavit from P.A. and C.A., who indicate that they were "co-soldiers" of the appellant who served in a guerilla unit fighting side-by-side with American soldiers. The record shows that the RO, based on the appellant's Form 23, requested a determination from the pertinent U.S. service department as to whether the appellant has service as a Recognized Guerilla. In December 2009, the appropriate service department 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. The Board initially notes that the Philippine service document submitted by the appellant is not the type of service document that suffices to establish his service. He is claiming service in the recognized Guerilla units that served the U.S. Armed Forces, Far East, and the document is not from a U.S. service department. This remains true although the representative certified that, per his training in certification of evidence for proof of service, the Form 23 was a true and exact copy of the original document or a copy issued by the service department. The Board does not doubt that the document is a true copy of the appellant's original Form 23. The issue is whether it is a product of the appropriate service department. It is not. Under 38 C.F.R. § 3.203, to establish the requisite service, the appropriate service department in his case would be a U.S. service department, and not the Philippine government. In any event, the Philippine document does not support his claim. It at most notes that he served in a guerilla unit, and in fact specifies that he served in a guerilla unit other than one associated with the USAFFE. Nor is the joint affidavit acceptable as a service document establishing the requisite status, and it in fact only indicates that the appellant was a "co-soldier" of the affiants, and that the affiants served in a guerilla unit with exposure to American soldiers; they did not attest or suggest that the guerilla unit operated under the auspices of the USAFFE. The Board points out that neither the decision of the United States to allow the appellant to immigrate, nor the decision to Naturalize him have any bearing on whether he had service as a Recognized Guerilla. While service in the U.S. Armed Forces may be a factor in the above processes, it clearly is not a pre-requisite. The same is true with respect to the monies he is receiving from the Social Security Administration and the Philippine government. The basis for the monies from the Social Security Administration undoubtedly rests on the appellant's status as a Naturalized U.S. citizen, and not on any determination as to service in the U.S. Armed Forces, particularly as determinations as to Veteran status for VA purposes does not rest with the Social Security Administration. As for the monies from the Philippine government, the decision by a foreign government to offer monies to a person does not establish that the person is a "Veteran" for VA purposes. To determine the nature of the appellant's service, VA contacted the service department, which in December 2009 certified that he did not have the type of service that would qualify him for payment from the Filipino Veterans Equity Compensation Fund. In light of the service department's certification that the appellant did not have service with the recognized Guerillas, and as he neither contends nor does the evidence suggest that he had the other types of service qualifying him for payment from the Filipino Veterans Equity Compensation Fund, the Board finds that the preponderance of the evidence is against the claim; therefore, the claim must be denied. ORDER Legal 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