Citation Nr: 1311319	
Decision Date: 04/05/13    Archive Date: 04/19/13

DOCKET NO.  10-31 756	)	DATE
	)
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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.



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

R. Anderson, Associate Counsel


INTRODUCTION

The claimant/appellant alleges he had recognized service with the United States Armed Forces in the Far East (USAFFE) during World War II.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decisional letter of the Manila, Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO) that denied his claim seeking a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.  Because veteran status of the person based on whose service the benefit is sought is a threshold requirement for 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).


FINDINGS 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 Armed Forces of the United States.


CONCLUSION OF LAW

The appellant is not a veteran, and is not eligible for a one-time payment from the FVEC Fund.  38 U.S.C.A. §§ 101, 107 (West 2002); American Recovery and Reinvestment Act, § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1, 3.40,  3.203 (2012).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

In Palor v. Nicholson, 21 Vet. App. 325 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, in claims where it is necessary to first establish veteran status, proper VCAA notice must be tailored to also inform claimants of the information or evidence necessary to prove the elements of veteran status, what information the appellant is responsible for providing, and what information VA will seek to obtain concerning that element.  

A close review of the claims file found that the appellant was not advised of VA's duties to notify and assist in the development of his claim prior to the initial adjudication of this matter.  However, the Board finds that he is not prejudiced by such notice defect.  In Shinseki v. Sanders, 129 S.Ct 1696 (2009), the United States Supreme Court reversed the case of Sanders v. Nicholson, 487 F.3d 881 (2007, which had held that any error in VCAA notice should be presumed prejudicial and that VA must always bear the burden of proving that such an error did not cause harm.  In reversing Sanders, the Supreme Court, in essence, held that-except for cases in which VA failed to inform the claimant of the information and evidence necessary to substantiate the claim-the burden of proving harmful error must rest with the party raising the issue, and determinations on the issue of harmless error should be made on a case-by-case basis.  Shinseki, 129 S.Ct. at 1704-06.  

The appellant has not alleged that he was prejudiced because he did not receive timely notice of what was needed to substantiate his claim.  The record reflects that based on information he provided in association with his February 2009 claim for benefits, the RO sought service department verification of his service, and based on service department certification that he did not have qualifying service, determined he is ineligible for VA benefits as a matter of law.  In July 2010, the appellant submitted additional documentation suggesting re-certification of his service/non-service was necessary.  Based on the service department's re-certification, he did not have qualifying service and was still ineligible for VA benefits.  When an appellant is ineligible for VA benefits as a matter of law based on the service department's refusal to certify the appellant's service, he is not prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status.  See Palor, 21 Vet. App. at 332-33 ("given the binding nature of the U.S. service department's certification ... a remand for further development could not possibly change the outcome of the decision").

The RO sought certification of the appellant's military service and advised him of what documents he could submit to assist in the matter.  There is no indication that information submitted by VA to the service department for the purposes of certifying his service was erroneous or incomplete.  The appellant has not identified or submitted any further evidence suggesting that additional re-certification of his service/non-service is necessary.  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim.

II.  Factual Background

In February 2009, the appellant submitted VA From 21-4138 to apply for a one-time payment from the FVEC.  The appellant contended that he had active service in the Philippine Commonwealth Army, and provided his name, address, date of birth, service number, dates of service and unit in which he served.  

In April 2009, the RO submitted the above information to the National Personnel Records Center (NPRC).  In July 2009, the NPRC certified 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.  In August 2009, the appellant was notified of the denial of benefits by decision letter.

In February 2010, the appellant submitted a notice of disagreement, along with a Certification from the Office of the Adjutant General (OTAG) of the Armed Forces of the Philippines and a U.S. Certificate of Naturalization, to demonstrate veteran status.  The OTAG Certification noted a different organization and discharge date than those on the appellant's initial application.  The RO sought recertification of the appellant's service based on this additional information.  In May 2010, the NPRC certified that the appellant did not have qualifying service.  

In July 2010, the appellant submitted a substantive appeal and two statements requesting reconsideration of his claim, alleging an error on the part of NPRC, (which he had remedied to obtain United States citizenship).  He was advised (by supplemental statement of the case) that while documentation he provided may suffice to support an application for citizenship, because it was not a document by the service department, it was not sufficient to prove qualifying service and warrant entitled to basic eligibility for a one-time payment from the FVEC Fund.

In November 2010, the Veteran sought re-certification of his alleged service and submitted documents from the Republic of the Philippines Department of National Defense, Philippine Veterans Affairs Office, certifying that he was a veteran of the Philippine Revolution/World War II/Armed Forces of the Philippines and had claims for Old Age Pension and Educational Benefits filed with that office approved.    This information was forwarded to the NPRC for another certification of the appellant's alleged service.  

In January 2012, the NPRC issued two more certification forms, both stating that no change was warranted in the prior negative service certifications.  


III.  Legal Criteria and Analysis

Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund.  American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009).  Payments for eligible persons will be either in the amount of $9,000 for non-United States citizens, or $15,000 or 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(c)(1) provides that the Secretary may make a payment from the compensation fund to an eligible person who, during the one-year period beginning on the date of the enactment of this Act, submits to the Secretary a claim for benefits under this section.  The application for the claim shall contain such information and evidence as the Secretary may require.  Section 1002(c)(2) provides that if an eligible person who has filed a claim for benefits under this section shall be made instead to the surviving spouse, if any, of the eligible person.

Section 1002(d) provides that an eligible person is any person --(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.

For eligible persons who accept payment from the FVEC Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service ...."  However, nothing in this act "prohibit[s] a person from receiving benefits (including health care, survivor, or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of this Act."

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 of Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department under 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 does not meet the requirements of this section, the VA shall request verification of service from a service department.  38 C.F.R. § 3.203(c).

The appellant has not submitted any documents that meet the first requirement of 38 U.S.C.A. § 3.203(a).  He has not submitted a DD Form 214, a Certificate of Release of Discharge from Active Duty, or original Certificate of Discharge from the United States Armed Forces.  Therefore, based on the record and documents he provided VA sought service department verification of whether the appellant served in the U.S. Armed Forces in the Philippines.  In July 2009, May 2010, and January 2012, the service department (via the NPRC) certified it had no record of the appellant serving as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. 

The Board notes that while the appellant has provided ample evidence to show that he is a veteran of the Philippine Army, he has not provided sufficient evidence to establish that such service was in the service of the United States Armed Forces.  The documents certifying that he is a veteran of World War II were provided by the Philippine Veterans Affairs Office, not the United States service department, and are therefore inadequate to establish veteran status.  See 38 C.F.R. § 3.203(a).  Conversely, certifications by the service department (via the NPRC) are binding on VA, and VA has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet. App. 530 (1992).  If a change of service department certification is what the appellant seeks, his remedy lies with the service department, not VA.
The appellant has provided no further (since his July 2010 submissions) evidence or information that would warrant a request for re-certification of his service/non-service by the service department, and VA must abide by the service department's certification.  See Capellan v. Peake, 539 F.3d 1737 (Fed. Cir. 2008); Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).  Accordingly, the Board finds the appellant did not have the requisite service and is not a veteran so as to establish eligibility for compensation from the FVEC Fund.  Since the law is dispositive in this matter, the claim must be denied because of the absence of legal merit or entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  


ORDER

The appeal to establish veteran status for the appellant and his entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs