Citation Nr: 1310575 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-30 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant is a Veteran for the purpose of establishing entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant contends that he had recognized Philippine guerrilla service, in the service of the United States Armed Forces during World War II. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decisional letter by the Manila Regional Office (RO). Because Veteran status of the person seeking a VA benefit is a threshold requirement for establishing entitlement to such benefit that is the matter before the Board. 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 appellant seeks entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund." American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009). Payments for eligible persons will be either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Section 1002 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II. Section 1002(d) provides that an eligible person is any person who - (1) 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 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 (B) in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable. Section 1002(j)(2) also provides that VA will administer its own provisions in a manner consistent with VA law except to the extent otherwise provided in the statute. For purposes of establishing entitlement to VA 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 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, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). Determinations by the service department verifying a person's service are binding on VA for purposes of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Venturella v. Gober, 10 Vet. App. 340 (1997). In Capellan v. Peake, 539 F.3d 1373, 1382 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit found that VA must ensure that service department verifications as to whether an individual served in the United States Armed Forces are based on all available evidence, including any evidence of service that a claimant submits to VA. In the present case, the service department (via the National Personnel Records Center (NPRC)) certified (in September 2009 and January 2013) it had no record of the appellant serving as a member of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Forces. With his initial application for VA benefits, received in February 2009, the appellant identified his reported guerilla unit as "HQ & HQ Serv. Co., 66th Inf. PA (E-24)," with a date of birth of March 2, 1929. In a February 1991 AGNR1, the Veteran identified his reported guerilla unit as "HQ & HQ Serv. Co., 66th Inf. PA (F-24)", with a date of birth of March 2, 1927. Furthermore, in his February 2010 notice of disagreement, he reported he served under the command of "Major Dennis Molinas," and that he was inducted into the "HQ & HQ Bn. Serv. Co., 66th Inf. USAFIPNL". In statements submitted by individuals who report to have served with the appellant, it was stated that the appellant also served in the "Combat Co." and "Heavy Weapon" company of the 66th infantry. Moreover, various additional records submitted by the appellant identify his date of birth as March 2, 1927. Under well-established case law, it became incumbent on the RO to seek re-certification of the appellant's reported service based on the new information provided -which the RO proceeded to do. Unfortunately, the request for recertification of service with the new reported unit of service (as well as the corresponding service department response) only listed the appellant's date of birth as being "March 2, 1929." Further, the above-noted reported commanding officer, "Major Dennis Molinas," was not included in the service department certification request. In addition, all of the identified units have not been included in one single certification request with the other information. Thus, correction action to obtain re-certification of service based on new information actually provided is necessary. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994) ("there is no stated limit on the number of times that the Secretary 'shall' request service department verification when one claiming entitlement fails to submit qualifying evidence of service."). 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. Secure service department verification of the appellant's claimed service in the United States Armed Forces during World War II (using all permutations of his name the appellant has provided, i.e., "Mark Zafra", "Mark P. Zafra", and "Mark Palacsa Zafra"), units of service identified (i.e., "HQ & HQ Serv. Co., 66th Inf. PA (E-24)", "HQ & HQ Serv. Co., 66th Inf. PA (F-24)", "HQ & HQ Bn. Serv. Co., 66th Inf. USAFIPNL", "Combat Co./Heavy Weapon, HQ & HQ Bn., 66th Inf. USAFIPNL"), and a commanding officer (i.e., "Major Dennis Molinas"), and both dates of birth (March 2, 1929, and March 2, 1927). In doing so, provide the service department copies of all relevant records in the claims file. 2. Ensure that the development sought is completed in full, i.e., that there is re-certification of service that encompasses all additional information provided by the appellant. Then readjudicate this claim. If it remains denied, issue an appropriate supplemental statement of the case and afford the appellant the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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. The law requires that all claims that are 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). _________________________________________________ STEVEN D. REISS 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).