Citation Nr: 1310316 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 11-29 108 ) 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 G. A. Wasik, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from An April 2010 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT 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. CONCLUSION OF LAW The appellant did not have the requisite service to entitle him to payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. § 501 (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 Duty to Notify 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. 2011); 38 C.F.R. § 3.159(b) (2012). 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). In this case, 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 the June 2012 notification letter, the RO advised the appellant of the information and evidence needed to substantiate and complete a claim for one-time payment from the Filipino Veterans Equity Compensation Fund, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him, as well as additional notification requirements. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuing this letter and affording the appellant the opportunity to submit additional evidence and argument, the RO reconsidered his claim in a September 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) (holding that the issuance of a fully compliant notification followed by readjudication of the claim, such as an Statement of the Case, is sufficient to cure a timing defect). In any event, the Board finds that to any extent that the notification provided to the appellant did not include sufficient information regarding veteran status, such error is not prejudicial. As set forth in more detail below, the service department has, on three separate occasions, 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. VA is bound by this certification. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 ("The Federal Circuit's decision in Soria recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive and binding on VA."); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In light of the binding certifications, any notification error is non-prejudicial as the appellant is not entitled to the benefit sought 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."). Duty to Assist VA also has a duty to assist claimants in the development of a claim. This includes assisting the claimant in procuring service medical records and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). A review of the record indicates that all necessary evidence relative to this claim has been obtained and associated with the claims file. The service department has certified on three occasions 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. The initial negative certification provided in connection with the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund was in February 2010. After the appellant submitted additional information, the RO again contacted the service department and requested reverification of service for the appellant. 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). In requesting this recertification, the RO provided National Personnel Records Center (NPRC) with additional pertinent evidence, including copies of the documentation submitted by the appellant. This procedure was followed a third time by the RO, and in July 2012, the service department again certified 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. Since that third negative certification, the appellant has produced no additional information which would warrant a third request to NPRC. 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; 38 C.F.R. § 3.159(c). The appellant failed to report for a hearing before the Board which was scheduled to be conducted at his local RO in February 2013. The notification letter for the hearing date was not returned as undeliverable and the appellant has not provided any indication why he failed to attend the scheduled hearing. 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; 38 C.F.R. § 3.159(c); see also Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Background In July 2009, the appellant submitted an application for one-time payment from the Filipino Veterans Equity Compensation Fund. He reported that he had served as a recognized guerilla with the 106th Guerrilla Unit of Luzon from June 12, 1942 to May 31, 1945. Upon receipt of the appellant's application, the RO contacted the service department and requested verification of the appellant's reported military service. In its request, the RO included the information provided by the appellant. The RO also noted that the appellant's name was a common name in the Reconstructed Recognized Guerrilla Roster maintained by their office. In January 2010, NPRC responded that the appellant had 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. In April 2010, the RO denied the appellant's claim on the basis that the service department had certified that he did not have the requisite military service to establish eligibility therefore. In August 2010, the appellant submitted additional evidence in support of his claim. He submitted an Affidavit from a person who indicated he had served with the appellant in the recognized guerillas. He indicated he had knowledge that the appellant had been inducted into the 106th Squadron, Guerrilla Units at Luzon. The appellant submitted a sworn statement dated in January 1953 wherein he indicated that he served with the 2nd Pangasian Regiment (ECLGA). He was inducted June 12, 1942 and discharged in May 31, 1945. It was reported that the appellant was attached to American military units during the war including the 63rd Infantry 6th Division, the 1st Infantry 6th Division, and the 128th Infantry 32nd Division. The appellant submitted a copy of his Philippine Veterans Legion indicating that his name was J. V. B. The appellant submitted a copy of a document from the Philippine Veterans Affairs Office which indicates he was entitled to a veterans preference based on his service from June 12, 1942 to May 31 1945 with the 106th Guerrilla Unit of Luzon. Another document from this office was received which included the same descriptive information but also indicated that the appellant's name was carried on the Approved Revised Reconstructed Guerilla Roster of 1948. Another document from the same office included the same descriptive information. In a July 2010 statement, the appellant wrote that he was assigned to a guerrilla unit during the war but his unit was not recognized because there was a limitation of recognition of men in the unit and the appellant also was sick when the final list of guerillas was submitted. In August 2010, the RO contacted the service department and requested verification of the appellant's reported military service. In its request, the RO included the additional information provided by the appellant including the American military units he reported he was assigned to. The RO also noted that the appellant's name was a common name in the Reconstructed Recognized Guerrilla Roster maintained by their office. In September 2010, NPRC responded that the appellant had 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. In February 2011, the appellant submitted additional evidence in support of his claim. He submitted another document prepared by the Philippine Veterans Affairs Office which indicated that he was a deserving guerilla of WWII. Based on the additional evidence received, the RO again contacted the service department and requested reverification of the appellant's reported military service. In July 2012, the NPRC again responded that the appellant had 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. Applicable Law 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 VA. 38 U.S.C.A. § 107 (West 2002). On February 17, 2009, the President signed the American Recovery and Reinvestment Act, intended for "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization." See Pub. L. No. 111-5, 123 Stat. 115 (2009). The legislation included a provision 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 VA 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. VA 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). Pursuant to that authority, VA 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). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for ninety days for a line of duty disability. 38 C.F.R. § 3.203(b). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, the VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). 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); see also 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."). Analysis As set forth above, the NPRC has certified on three occasions 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. VA is bound by that certification. The Board has carefully considered the documentation submitted by the appellant, but notes that it fails to satisfy the requirements as acceptable proof of service. 38 C.F.R. § 3.203. The documents submitted by the appellant were not issued by the service department, nor do they contain the necessary information to establish entitlement to the benefit sought. As such, those documents 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 Filipino Veterans Equity Compensation Fund. In any event, the Board notes that the NPRC has considered the information contained in that documentation and nonetheless three times certified that the appellant 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"). The Board has also considered the appellant's arguments to the effect that, as recognized by the Philippine Government, he served in the guerrilla forces under U.S. Command and that the NPRC's negative certification is therefore erroneous. Again, however, his statements in this regard do not provide a basis upon which to grant the benefit sought because the Board is bound by such certification. If the appellant believes that the service department has incomplete or inaccurate information as to his service with the recognized guerillas, the Board encourages the appellant to pursue the correction of his service information. See e.g. Cahall v. Brown, 7 Vet. App. 232, 237 (1994) (noting that if the appellant disagrees with the information contained in service department records, his remedy, if any, must be pursued with the Army Board for the Correction of Military Records). In summary, as the service department has certified that the appellant did not have the requisite service to qualify him 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. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs