Citation Nr: 1311880 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 12-01 030 ) 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 Fund (FVECF). ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The appellant claims service in the United States Armed Forces as a recognized guerrilla during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Board notes that the appellant requested and was scheduled for a hearing before a Veterans Law Judge in January 2013, but did not appear for the hearing. Accordingly, the Board considers the appellant's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2012). 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). 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 requirements for eligibility to a one-time payment from the FVECF have not met. 38 U.S.C.A. § 107 Note (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act, § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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, a letter dated in April 2011 provided the appellant with the required notification. This notification was followed by a readjudication of the claim in a December 2011 statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). Furthermore, all of the appellant's written arguments, as well as accompanying affidavits and other documents, have been directed toward establishing his status as a Veteran. In the January 2010 decision, he was notified that veteran status may be established by verification of valid military service by the National Personnel Records Center (NPRC), which did not have a record of valid service for the appellant. The December 2011 statement of the case provided a list of all the documents that had been considered, as well as the text of the relevant portions of the federal law authorizing the Filipino Veterans Equity Compensation Fund. Thus, the Board finds that the appellant has had a meaningful opportunity to participate in the processing of his claim. Additionally, as set forth in more detail below, 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. 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 VCAA notification error is non-prejudicial as the appellant is not entitled to the benefit as a matter of law. Valiao v. Principi, 17 Vet. App. 229 (2003); see also Palor, 21 Vet. App. at 332-33 (which holds that, "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"). 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 NPRC in December 2011. 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) (2012). 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. II. Analysis The appellant contends that he is entitled to a one-time payment from the FVECF due to military service. The appellant contends that his active service has been proven as he receives an old age pension from the Republic of the Philippines Department of National Defense. See, e.g., October 2010 notice of disagreement. 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 FVECF, 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). In the current appeal, the appellant contends that he enlisted as a guerilla member in May 1942 and served in Company "B," Squadron A, Sta Cruz Sector ZMD. In support of his claim, he has submitted a number of documents regarding his entitlement to benefits authorized by the Philippine Veterans Affairs Office (PVAO), based on his status as a veteran, including an old age pension. These documents include a January 2001 letter confirming the appellant as a military Veteran and the October 2010 letter approving the award of an old age pension in which the appellant was shown as serving in the "B" Co. Sqdn A Sta Cruz Sector ZMD. The category of veteran identified was not, however, "WWII-PA, USAFFE" or "WWII-Guerrilla" but rather as a "deserving" guerilla. The January 2001 confirmation letter and the October 2010 letter awarding an old age pension were documents created and 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 this regard, these records indicate that the Philippine government has established a category of "Deserving Guerrilla." Such a category is not included in the definition of an "eligible person" set forth in the Act, however, or otherwise in VA law or regulations. Such document, issued by the Philippine government, 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. He also submitted an affidavit from two fellow service members dated in February 2009 showing that they knew the appellant and that he enlisted in May 1942 and served with the company identified above. According to the affidavit, the appellant was not in the signers group during processing and/or demobilization. Following receipt of the appellant's February 2009 claim for FVECF payment, the RO submitted a May 2009 request that the NPRC determine whether the appellant's service was recognized as service to the United States. The RO noted that the appellant was not listed on the reconstructed recognized guerilla roster (RRGR) maintained by the Marilia RO. The May 2009 request to the NPRC sought verification of the appellant's service under the name provided by the appellant. The request listed the name of the appellant's father and mother as well as the name and birthdates provided by the appellant. In October 2009, the NPRC provided a negative certification, finding that the appellant had not served "in the service of the United States Armed Forces." In April 2011, the RO submitted a second request to NPRC for verification of the appellant's United States military service. In September 2011, the NPRC again responded that the appellant had no service as a member of the Philippine Commonwealth Army in the service of the United States Armed Forces. A third request with an alternate spelling of the appellant's middle name was submitted in October 2011. The NPRC responded to this request in December 2011, finding again that the appellant had no service as a member of the Philippine Commonwealth Army in the service of the United States Armed Forces. Thus, the NPRC has certified, three separate times, 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. These certifications were based on all available evidence, including other names potentially used by the appellant. 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, 2 Vet. App. at 532 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has reached the same conclusion. See e.g. Soria, 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."). 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 based on his service as a "deserving guerrilla," authorized by the Philippine government, but not recognized by the U.S. Department of Veterans Affairs. 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 FVECF. The NPRC has considered the information contained in the documentation and nonetheless 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"). As the service department has certified that the appellant did not have the requisite service to qualify him for payment from the FVECF, 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). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a one-time payment from the FVECF is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs