Citation Nr: 1309396 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 12-00 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the appellant's claim for one-time payment from the Filipino Veterans Equity Compensation Fund. In January 2013, the Board remanded the appellant's appeal to accord her a personal hearing at the RO, in response to her request. She reported for her scheduled hearing in February 2013, but opted for an informal conference instead of a hearing. She stated that she had no other evidence to submit, and requested that the file be forwarded to the Board for a decision. See February 2013 Informal Conference Report. Please note that 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 service department has certified that the appellant's late husband, BJR, 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. CONCLUSION OF LAW The requirements for payment from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. §§ 101, 5107 (West 2002); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance (VCAA) Compliance Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)(1) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 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) (which holds that, because "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"). In this case, in a letter dated in February 2012, the appellant was provided with an explanation of the evidence needed to establish entitlement to Filipino Veterans Equity Compensation (FVEC), as well as her and VA's respective obligations in obtaining specific types of evidence. Although the appellant was not provided with the required notification prior to the initial adjudication of her claim, the Board finds that no prejudice has resulted. After affording the appellant the opportunity to submit additional evidence and argument, the RO reconsidered the claim in the May 2012 Supplemental Statement of the Case. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); Medrano v. Nicholson, 21 Vet. App. 165 (2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a Statement of the Case, is sufficient to cure a timing defect). Under the VCAA, VA also has a duty to assist claimants in the development of a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). All necessary evidence relative to this claim has been obtained and associated with the claims file. The service department has certified 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 during World War II. No new, relevant evidence has been received since the last certification was obtained from the National Personnel Records Center (NPRC) in March 2012. See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008) (holding 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 must be submitted to the service department for review, if the additional evidence contains information which could change NPRC's previous certification (such as a new name, etc.)). Additionally, given the nature of the issue on appeal, the Board finds that there is no need for a VA medical opinion. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. No reasonable possibility exists that any additional assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011). The Board further notes that the Court has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As set forth in more detail below, the appellant's appeal must be denied as a matter of law. Filipino Veterans Equity Compensation Fund Entitlement The appellant claims that she is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund, based on the World War II service of her late husband, who died in May 2009. The Philippine Islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. 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 called into the service of the United States Armed Forces of the Far East by President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that the service of certain Filipino veterans does not entitle them to receive full benefits administered by the Secretary U.S. Department of Veterans Affairs. 38 U.S.C.A. § 107 (West 2002). To redress the inequity, on February 17, 2009, the President signed legislation for the creation of the Filipino Veterans Equity Compensation Fund, providing one time payments to "eligible persons" in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (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 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 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 such service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009). The Act further directs the Secretary to "administer the provisions of this section in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and shall apply the definitions in section 101 of such title in the administration of such provisions, except to the extent otherwise provided in this section." Id. The Secretary is authorized by statute to prescribe "regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits" under the laws administered by VA. 38 U.S.C.A. § 501(a)(1) (West 2002). Pursuant to that authority, the Secretary has prescribed regulatory provisions governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. That regulation provides that for the purpose of establishing entitlement to 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 the VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a) (2012). When the claimant does not submit evidence of service or the evidence submitted does not meet these requirements, the VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c) (2012). Here, the appellant's husband submitted an affidavit during his lifetime, dated in June 2000, in which he stated that he served in the 103rd Guerrilla Squadron USAFFE. He said that he has first inducted into the First Aid Unit during the summer of 1943, and was given First Aid instructions on a weekly basis for 2 months. After that, he was officially recruited as a member of the USAFFE Guerrilla unit, and began training. After the completion of training, he was instructed to joint guerrilla activities He was required to bring letters or notes to other officers living elsewhere. When his location was liberated in November 1945 he was within the NCS with 2 Australian officers, and a jeep driven by an American came to fetch him and took him to be reunited with his family. He believed that he served in the 103rd Guerrilla Squadron until November 30, 1945, but unfortunately was not included in the roster of troops under the command of the U.S. 6th Army due to "quota limitations." Affidavits dated in June 2000 were also received from individuals who stated that they served with the appellant's husband, BJR, during World War II. Two of the affidavits from separate individuals are essentially identical (to include the affiants' service identification numbers), and state that BJR was inducted in December 1942 and assigned to the Medical Corps, under the supervision of the Chief Medical Officer of the 103rd Squadron Guerrilla Battalion, LGAF [Luzon Guerrilla Armed Forces]. The affiants stated that he had been very active in the procurement of food supplies and other necessities and in the curing and caring of the sick and wounded brought to the Medical Station for treatment. They stated that he served from his induction to separation in January 1945. Finally, they said that his name was not carried in the recognized reconstructed roster because he sought separation for his family's convenience and only able-bodied men in camp were processed and included in the recognized roster. Hence, he fell under the category of deserving veteran of World War II. Another June 2000 affidavit was from an individual who said that he had been an officer of the 103rd Guerrilla Squadron and that he had been acquainted with the first aiders including BJR. The appellant has also submitted a number of documents regarding her husband's entitlement to benefits authorized by the Philippine government, based on his status as a veteran, including an old age pension provided by the Veterans Affairs Office (PVAO), and a Civil Service ratings report dated in January 1954, showing that he had been allowed "Veteran Preference." These documents also include a "CONFIRMATION OF MILITARY SERVICE" dated in December 2000, certifying his service during World War II, and conferring full military veteran status. However, all of these documents were issued by the Philippine government, and not a U.S. service department. Recognition of service by the Philippine government, although establishing entitlement to benefits from that government, is not sufficient for benefits administered by VA. In November 2009, the RO requested that the National Personnel Records Center (NPRC) provide AGUZ Form 632 and all extracts of Form 23 pertaining to BJR, noting that his name was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained at the Manila RO. The NPRC responded, in December 2009, certifying that he 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. Another request was made to the NPRC in February 2012, this time accompanied by copies of the documentation submitted by the appellant, including copies of various papers showing BJR's veteran status as acknowledged by the Philippine government, the affidavits, and identification cards showing his membership in organizations such as the Veterans Federation of the Philippines. In March 2012, the NPRC again certified 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. Thus, the NPRC has certified that BJR 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 certifications were based on all available evidence, including the affidavits and other evidence submitted on his behalf. The 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); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has reached the same conclusion. See e.g. Soria v. Brown, 118 Fed. 3rd 747, 749 (Fed. Cir. 1997) (noting that "[b]ecause the United States Department of the Army refused to certify [the claimant's] alleged service in the Philippine Army, the VA properly refused to consider his claim for veterans' benefits based on that service."). Moreover, the Board has carefully considered the documentation submitted by the appellant, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The documents submitted by the appellant were not issued by a U.S. service department, nor do they contain the necessary information to establish entitlement to the benefit sought. His entitlement to receive benefits from the PVAO is not recognized by the U.S. Department of Veterans Affairs. Indeed, the affidavits from BJR and others acknowledge that he was not carried on any official roster. He stated that he was not included due to quotas, while the other affidavits indicated that his absence on the roster was because he sought separation to rejoin his family. Although inconsistent, these agree that he was not, in fact, included in the RRGR. Another significant inconsistency involves the claimed dates of service of BJR. He stated, in March 2009, that he served from 1942 to 1945, but in his June 2000 affidavit, he said that his claimed service had been from mid-1943 to November 1945. The affidavits from purported comrades, also dated in June 2000, identify his service as from December 1942 to January 1945. Additionally, he was born in March 1927; as such, he would have been 15 years old in 1942 and 16 years old in mid-1943. During World War II in the Philippines, however, it is not unlikely that age requirements would have been relaxed, and, in any event, the appellant's claim is denied on the basis that BJR had no qualifying service verified by the United States service department, and not due to his age during World War II. To reiterate, the documents from the appellant, issued by the Philippine government, may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA, including the one-time payment from the Filipino Veterans Equity Compensation Fund. The NPRC has considered the information contained in the documentation and nonetheless certified that the appellant's husband, BJR, 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. Again, the Board is bound by this certification. See e.g. Capellan, 539 F.3d at 1376 (noting that "if the United States service department refuses to verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not the VA"). As the service department has certified that BJR did not have the requisite service to qualify his surviving spouse for payment from the Filipino Veterans Equity Compensation Fund, the appeal must be denied. Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs