Citation Nr: 1307564 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 09-37 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant meets the basic eligibility requirements for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The appellant contends that he had recognized guerilla service and service in the Commonwealth Army of the Philippines in the service of the United States Armed Forces of the Far East (U.S.A.F.F.E.). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In July 2010, the Board remanded the claim for additional development. 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 National Personnel Records Center (NPRC) has verified that the appellant did not have 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 service requirements for eligibility to a one-time payment from the FVEC Fund have not been met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012), and implemented at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 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) (as 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). 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 notification letters, dated in the August 2010 and February 2011, the RO explained what information and evidence is necessary to prove the element of veteran status. The February 2011 letter also complied with 38 U.S.C.A. § 5103(a) as to his claim of legal entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. In any event, any VCAA notification error is non-prejudicial as the appellant is not entitled to benefit as a matter of law. See Valiao v. Principi, 17 Vet. App. 229 (2003); see also Palor, 21 Vet. App. at 332-33 ("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."). In July 2010, the Board remanded this claim. The Board directed that the appellant be provided with a notice that complies with 38 U.S.C.A. § 5103(a) as to his claim of legal entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund, and in February 2011, this was done. The Board also directed that the RO attempt to verify the appellant's claimed service after providing the service department with the supporting documentation which the appellant had submitted. This was done on three occasions. See National Personnel Records Center responses (VA Forms 21-3101 (JF)), dated in October 2010, November 2010, and January 2011. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. The Board therefore finds no prejudice toward the appellant in proceeding with the adjudication of his claim. II. Filipino Veterans Equity Compensation (FVEC) Fund The appellant asserts that he had recognized guerilla service in the Commonwealth Army of the Philippines in the service of the U.S.A.F.F.E. and is therefore an eligible claimant. Specifically, he asserts that he was inducted into the U.S.A.F.F.E. in December 21, 1941, and was discharged honorably in August 18, 1945. According to a statement submitted in May 2007, the appellant indicated that, after his induction, he was assigned to the 1st MA of the 11th Infantry Division and that he was later assigned to a guerrilla unit. The appellant has submitted a number of documents in support of his claim, including, but not limited to, a discharge paper from the Commonwealth of the Philippines Army, reflecting that he was enlisted at Camp Henry T. Allen on December 21, 1941, and was honorably discharged effective May 23, 1947; a document of the Philippine Army, reflecting that he was enlisted at Calagugao Mountains, La Union, on March 15, 1942, and was honorably discharged, effective May 3, 1947; various versions of his Affidavit for Philippine Army Personnel, including one where he indicated that he served in the U.S.A.F.F.E. from August 18, 1945, to August 19, 1945, and that he served in the guerrilla services from March 10, 1945, to August 17, 1945; a document from the Philippine Ministry of Defense certifying that he was inducted into the U.S.A.F.F.E. on March 15, 1945; and, a document dated in December 1967, from General Headquarters, indicating that he was inducted into the U.S.A.F.F.E. on December 21, 1941, and that "[r]ecords pertaining to discharge and/or separation from the military service are not available in his 201 File." For eligible persons who accept a payment from the FVEC 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 prohibits 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. 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. Under 38 C.F.R. § 3.203(a), VA may accept evidence of service submitted by a claimant, such as a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate U.S. service department under the following conditions: (1) the evidence is a document issued by the United States 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) (2012). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012); Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service. 38 C.F.R. § 3.203; Soria. By way of history, the appellant applied for VA compensation benefits in 1951. In a March 1952 administrative decision, his claim was denied. At that time, the RO had a response from the National Personnel Records Center (NPRC), dated in March 1952, which indicated that a search of the appellant's name revealed "no recognized guerrilla service, nor was he a member of the Commonwealth Army in the service of the Armed Forces of the United States." In May 2007, the appellant filed a claim for VA compensation. In June 2007, the RO denied the claim, after it determined that he had no qualifying service. The appellant appealed, and in October 2008, the Board denied the claim, which it characterized as "whether new and material evidence had been submitted to establish legal entitlement to VA benefits." In April 2009, the appellant filed a timely claim and contended that he was eligible for a one-time payment from the FVEC Fund as a result of his service, based on claimed service with the 1st MA of the 11th Infantry Division and, later, a guerilla unit (Company C, 2nd Battalion) of the US-CVP (United States - Chinese Volunteers of the Philippines). In June 2009, the RO denied the claim for lack of recognized service. The appellant has appealed. Subsequent to the RO's denial of the claim in June 2009, the appellant filed additional documentation in support of his claim. The RO therefore made new attempts to verify the claimed service with the service department. However, in October 2010, November 2010, and January 2011, the NPRC stated 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. In summary, certifications from the NPRC dated in March 1952, October 2010, November 2010, and January 2011, show 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. The NPRC made those certifications after considering the information provided by the appellant, to include a service number that he provided, and several variations of his name. See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008). The appellant has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1). All of the documentation submitted by the appellant fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department. As such, those documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including compensation from the FVEC Fund. The NPRC has certified that the appellant had no qualifying NPRC service. 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). The proper course for the appellant, who believes there is a reason to dispute the report of the service department or the content of military records, is to pursue such disagreement with the service department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits administered by VA. This department is bound to follow the certifications by the service departments with jurisdiction over United States military records. The Board also acknowledges that the appellant has submitted photocopies of his passport, showing that he is a United States citizen, and that Section 405 of the Immigration Act of 1990 provides for the naturalization of Philippine World War II participants. While it may be that the Immigration and Naturalization Service (INS) has recognized his service as qualifying for their purposes, the laws and regulations pertinent to VA and INS claims are different. While documents certified by the Philippine government may be sufficient to qualify one for naturalization in the United States, they are not sufficient to establish the appellant's entitlement to the one-time payment at issue in this case. Determinations made by INS have no bearing on the issue at hand, as the service department's decision is conclusive and binding on the VA. This evidence is therefore insufficient to verify the appellant's service for the purpose of receiving FVEC as administered under the law for VA benefits. See Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Based upon the record in this case, 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. Veteran status is a prerequisite to entitlement to payment from the FVEC fund. As such, entitlement to a one-time payment from the FVEC Fund is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs