Citation Nr: 1308508 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 11-27 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC). ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 decisional letter from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009); 38 U.S.C.A. § 107 (Note) (West Supp. 2012). The application for the claim shall contain the information and evidence VA requires. Id. § 1002(c). An eligible person is any person who 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 a 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ); and was discharged or released from such service under conditions other than dishonorable. Id. § 1002(d). 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). See 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. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203; Soria, supra. The appellant submitted his claim for benefits in April 2009. He resubmitted his claim in August 2009. He submitted several items in support of his claim in an effort to establish his eligibility for the claimed payment. The evidence submitted by the Appellant showed him to be a private in a unit of the USAFIP-NL. The items submitted included: Copies of OTAG/NRD Form, Certification of Service from the Office of the Adjutant General of the Armed Forces of the Philippines, dated in April 2009. Copies of AGNR2 Form, Certification of Service from the Armed Forces of the Philippines, dated in August 1993. Copies of Affidavit of Two Disinterested Persons executed by Q.Q. and M.M., attesting to the location and date of birth for the appellant, dated in July 1993. Copies of PVAO Form, Application for Old Age Pension (Veteran) from the Philippine Veterans Affairs Office, dated in September 1993. Copy of Letter from the Philippine Veterans Affairs Office, indicating your claim for Old Age Pension has been approved, dated in November 1993. The RO made an initial query to the National Personnel Records Center (NPRC) in September 2009. The appellant's claimed service in the guerillas was noted as was the unit identified in the several documents he submitted. The NPRC responded in October 2009 that a record of service for the appellant was not located. The NPRC requested additional information by way of an AGO PA (Adjutant General's Office) (Philippines Army) Form 23 from TAG-PA (The Adjutant General-Philippine Army). The RO wrote to the appellant to advise him of the need to submit the AGO-PA Form 23 in May 2010. The appellant was advised that he could ask the RO to request the form on his behalf but he had to notify the RO of that intention. The appellant responded in June 2010. He did not submit any additional information or evidence related to his claim but did provide the RO with an address correction. The RO submitted a second request to the NPRC in June 2010. The request noted that the AGO PA Form 23 was not available. The RO attached the previously submitted OTAG/NRD Form, Certification of Service from the Office of the Adjutant General of the Armed Forces of the Philippines. The appellant submitted a second response to the RO's letter of May 2010. The response is date stamped as being received at the RO in June 2010, just after the second request to the NPRC was made. The appellant asked that the RO seek the required AGO PA Form 23 on his behalf. In addition to providing a signed authorization for the RO, the appellant submitted a PVAO document, dated in November 1993, that noted approval of payment of an old age pension claim. The appellant also submitted a copy of a letter from the PVAO to him that announced the Philippine government would soon start paying its arrears on Total Administrative (TAD) pension benefits. The letter was dated in March 2010. The NPRC replied to the RO's request for service verification in October 2010. The reply was 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. Based on this information, the RO denied the appellant's claim in October 2010. The Board finds that a remand is required in this case. The appellant was given the opportunity to have the RO obtain for him the AGO PA Form 23 by way of the letter of May 2010. His initial response to the letter did not indicate any desire for assistance; however, in his second response, stamped as received on June 18, 2010, the appellant specifically sought to take advantage of the RO's offer to obtain the needed form. No action was taken on this response from the appellant. In addition, the appellant submitted additional evidence by way of the approval of his old age pension claim in November 1993 and the letter advising him of potential payments from the government as a result of his status as a World War II "veteran." In light of the Court of Appeals for the Federal Circuit's holding in Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008), the appellant's request for VA assistance, and the submission of additional evidence, the case must be remanded for additional action. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. After obtaining any necessary authorization or release from the appellant, make efforts to obtain a copy of any AGO PA Form 23, Affidavit for Philippine Army Personnel, pertaining to the appellant from the office of the Adjutant General of the Philippine Army. Efforts should include, but need not necessarily be limited to, an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). 2. If the records sought are not obtained, notify the appellant of the identity of the records that were not obtained; explain the efforts taken to obtain them; describe the further action to be taken regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the appellant submits the records VA was unable to obtain; and inform the appellant that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). 3. Even if an AGO PA Form 23, or any other new evidence pertaining to the appellant's claimed service, is not received, the RO must submit the additional evidence provided by the appellant in June 2010 to the NPRC to attempt to verify his claimed service. See Capellan, supra. The response received must be associated with the claims folder. 4. After conducting any additional development deemed necessary, the claim on appeal should again be reviewed. If the benefit sought remains denied, furnish a supplemental statement of the case to the appellant and afford him an opportunity to respond. Thereafter, the claims folder should be returned to the Board, if otherwise in order. No action is required by the appellant until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).