Citation Nr: 1308019 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 11-18 377A ) 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 (FVEC). ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In that decision, the RO denied the appellant's claim for a one-time payment from the FVEC. 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 is not shown to have had active military, naval, or air service, and is not an individual or a member of a group considered to have performed active military, naval, or air service. CONCLUSION OF LAW The appellant does not have status as a veteran for purposes of his claim for a one-time payment from the Filipino Veterans Equity Compensation Fund, and does not meet the requirements of basic eligibility for these VA benefits. 38 U.S.C.A. §§ 101, 107, 5103A (West 2002); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Clams Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). The appellant was not sent a VCAA notice letter. Since the claim is being denied, there is no effective date or rating being assigned, and he is not prejudiced by the absence of notice on those elements. The RO did provide the appellant with a form, "Statement in Support of Claim (Filipino Veteran's Equity Compensation Form)" that asked him to provide specific information needed to substantiate the claim. He was informed of the need for service department verification of his service by way of the January 2010 decision. The appellant demonstrated actual knowledge of what evidence he was responsible for obtaining by submitting evidence he felt supported his contention that he had qualifying service. The RO also informed him that it had undertaken responsibility for verifying his service. While such delayed notice did not comply with the requirements of the VCAA, the appellant had a meaningful opportunity to participate in the adjudication of his claim. He had years after the notice to submit evidence and argument and to request a hearing. He was not prejudiced in the adjudication of the claim. The above communications put the appellant on notice as to what was needed to establish veteran status. He was not prejudiced by the absence of notice on effective date and rating elements of the claim, because the claim has been denied and no rating or effective dates are being sent. The VCAA also requires that VA assist a claimant in obtaining evidence to substantiate the claim. The RO assisted the appellant by requesting verification through the National Personnel Records Center (NPRC) of his service twice. In the course of requesting verification it submitted the appellant's evidence and contentions. The NPRC researched service department records. There is no additional assistance that would be reasonably likely to assist in substantiating the claim; there are no indications in the record of additional evidence that remains outstanding. In this regard, the claim does not turn on a medical question and an examination or medical opinion could not substantiate the appellant's status as a veteran. Here, there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, and the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders, 556 U.S. 396, 408-409 (2009) (the burden is on the appellant to show that a notice error is harmful). The VCAA's duty to assist requirements apply to VA's efforts to obtain verification of service, as explained in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), and this duty was satisfied by the RO's request for verification of service from the NPRC, as discussed further below. FVEC The appellant, in written statements before the Board, contends that he had recognized service in the Philippine Commonwealth Army, from 1942 to 1945. He asserts that he is entitled to a one-time payment from the FVEC. In order to be eligible for benefits administered by the VA, the evidence must establish that the individual seeking benefits is a veteran. The term "veteran" is defined in 38 U.S.C.A. § 101(2) as a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt. Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that many of those served in the Philippine Islands during World War II did not have qualifying active service for the purpose of receiving VA benefits. 38 U.S.C.A. § 107 (West 2002 & Supp. 2012). The particular benefit claimed originated on February 17, 2009, with the American Recovery and Reinvestment. Pub. L. No. 111-5, 123 Stat. 115 (2009). That legislation, in part, established the FVEC, which is charged with providing one-time payments to eligible persons. Pub. L. No. 111-5, § 1002, 123 Stat. 115 (2009). An eligible person is defined as any person who served 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 dated July 26, 1941. That includes any person who served in military units such as the 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; and any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). Additionally, the person must have been discharged or released from that service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009). Under 38 C.F.R. § 3.203(a) (2012), 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) A copy of an original document is acceptable if the copy is issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; and (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. When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a), VA is required to request verification of service from the service department. See 38 C.F.R. § 3.203(c). Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and the VA has no authority to amend or change their decision. The Court of Appeals for Veterans Claims has held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon the VA. See Spencer v. West, 13 Vet. App. 376, 380 (2000); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In Capellan v. Peake, 539 F.3d 1373, 1381 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that under 38 C.F.R. § 3.203(c), in cases where service is not established based upon a document issued by the service department, VA must verify that claimant's service with the service department. New evidence submitted by a claimant in support of a request for "verification of service from the service department" must be submitted for service department review. Id. When new identifying information is submitted after the service department last considered whether service was met, another request for verification must be made in order for the duty to assist to be fulfilled. See Capellan, 539 F.3d at 1381-82; 38 U.S.C.A. § 5103A (West 2002). In this case, the appellant submitted multiple documents in addition to his claim form for a one-time payment from the FVEC. He initially submitted a Headquarters National Defense Forces memorandum from Camp Murphy, Quezon City, stating he was in the approved revised recognized roster effective January 1945. Also submitted was a Philippine Army honorable discharge record (stating he enlisted at age 13) and an April 1985 Republic of the Philippines Veterans Affairs Office document stating he was a veteran of the World War II/Philippine Revolution who served with MFAT as a private. He included copies of his United States passport, state driver's license, and certificate of naturalization. In September 2009, the RO submitted information to the service department, noting that the appellant's name was not listed in the Reconstructed Recognized Guerrilla Roster. In October, the service department or National Personnel Records Center (NPRC) stated the appellant had no service as a member of the Philippine Commonwealth Army, including recognized guerillas, in the service of the United States Armed Forces. As a result, the appellant was notified in January 2010 that basic eligibility to VA benefits had not been established. In response, he submitted some copies of the above listed evidence, plus: a December 1969 letter from the Republic of the Philippines Department of National Defense regarding claims settlement (showing service from July 1942 to October 1944); an April 1993 Philippine Government Insurance System form showing service from July 1942 to April 1945; a June 1973 Reservist Data Sheet; a February 1948 enlistment record showing participation in guerilla activities and a February 1985 Republic of the Philippines Ministry of National Defense letter stating his "back pay claim" was approved. He also submitted his May 1961 marriage certificate. In his June 2010 notice of disagreement, the appellant stated that he had service in the recognized guerillas in the service of the Armed Forces of the United States. He summarized his evidence and stated it was erroneous to conclude he had no military service. He stated that his induction/enlistment and discharge papers allowed him to pursue his education and were the basis for his naturalization as a United States Citizen. In response, the RO re-submitted all of the evidence to the NPRC in August 2010. In October 2010, the NPRC again stated the appellant had no qualifying service. The NPRC has duly considered the appellant's application for VA benefits and certified twice that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. The Board is bound by that certification. See Capellan, 539 F.3d 1373. Also, none of the submitted documentation and lay evidence qualifies as acceptable proof of service alone. 38 C.F.R. § 3.203. Submitted evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought. Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the FVEC. The Board concludes that the appellant does not meet the requisite legal requirements for obtaining a one-time payment from the FVEC and the claim for benefits must be denied. ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs