Citation Nr: 1310441 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 11-29 096 ) 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 (FVEC) Fund. ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 determination of 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 FVEC Fund on the basis that he had no valid military service. The appellant also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. All pertinent records in the paperless file are also in the paper file. 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 The American Recovery and Reinvestment Act (Act), includes a provision for the creation of the Filipino Veterans Equity Compensation (FVEC) 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). 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). 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). The U.S. Court of Appeals of Veterans Claims has held that 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. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) ("VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces). The U.S. Court of Appeals for the Federal Circuit has reached the same conclusion. See Soria v. Brown, 118 F.3d at 749 (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."). In this case, the appellant submitted his initial application for one-time payment from the FVEC Fund in April 2009. He reported serving in the 9th Replacement Company, 2nd Replacement Battalion, from September 1942 to 1947. The appellant also provided authenticated copies of an Affidavit for Philippine Army Personnel (PA AGO Form 23), dated in December 1945. This document provides the appellant's service number and states, among other things, that he was a "civilian guerrilla" and served in the 9th Replacement Company, 2nd Replacement Battalion. Dates of service from May 9, 1942, (when he was called into active duty) through September 8, 1945, (when he was processed in the Philippine Army) are listed. The individual finance record records payment for the period from September 8, 1945, through November 30, 1945, as a UNSAFE, as well as for the period from July 25, 1945, through November 30, 1945, as a guerrilla. The appellant also submitted a document dated in March 2009 issued by the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office indicating that he was a veteran of the Philippine Revolution/World War II who served in the 3rd Provisional Platoon Banal Regiment. He was noted to be a "recognized guerilla." The RO submitted these documents to the National Personnel Records Center (NPRC) for verification of service, along with a VA Form 21-3101 including the appellant's full name, date and place of birth, unit of assignment, and service number consistent with the evidence of record. The character of separation or discharge and last grade, rate or rank was listed as unknown. The date of entry into active duty was listed as September 1, 1942, and the date of separation from active duty was listed as June 30, 1946. The RO noted that the appellant's name was not listed in the RO's Reconstructed Recognized Guerrilla Roster (RRGR). In April 2010, the NPRC responded that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. The Veteran subsequently submitted additional copies of the Affidavit for Philippine Army Personnel, which were identical to the document submitted to the NPRC. However, in August 2010, he submitted an additional page, which is an authenticated copy of a document showing his "enlistment record" and "final endorsement" information. This document indicates that the appellant enlisted on May 9, 1942, that he was separated from the service at the grade of PFC for the convenience of the government on February 13, 1946, and that his character was "good." The same service number and unit of assignment are listed. In Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the Federal Circuit addressed the issue of when VA's duty to assist required it to re-attempt verification of Philippine military service when new information was provided after an earlier adverse determination. The Federal Circuit held that, generally, after a service department has failed to verify service, new evidence relating to a claimant's service requires that VA again request verification. Id. at 1381. Here, the only request made to the NPRC for verification of the appellant's service appears to approximate his service dates as September 1, 1942, to June 30, 1946, based on the appellant's initial report of serving from September 1942 to 1947, and the FVEC Fund requirement of service prior to July 1, 1946. However, there is a suggestion that these service dates may be incorrect, including in the PA AGO Form 23 (showing service dates from May 9, 1942, through November 30, 1945) and in the additional page with the "enlistment" and "final endorsement" information submitted after the initial request to the NPRC (showing service date from May 9, 1942, through February 13, 1946). Therefore, another request for verification of service from the service department, i.e., the NPRC, should be submitted using the appellant's correct service dates as shown by the currently available evidence. See id. at 1381-82. 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. Contact the NPRC, or other appropriate entity, and request verification of the appellant's service. The evidence submitted to the NPRC, or other appropriate entity, should include a service entry date of May 9, 1942, and a service separation date of February 13, 1946, with a rank at separation of PFC. 2. If the benefit sought remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). _________________________________________________ Mark D. Hindin 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).