Citation Nr: 1311964	
Decision Date: 04/10/13    Archive Date: 04/19/13

DOCKET NO.  10-37 809	)	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 December 2009 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.  No hearing was requested.

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).



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 for payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 5107 (West 2002); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2010).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper VCAA notice must inform the claimant of any information and evidence not in the 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.  Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002).  Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004).  

Further, where the appellant alleges recognized guerrilla service or other service in the Philippine Army during World War II, VA must 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) ("Since 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, the appellant was not provided with the required notification prior to the initial adjudication of his claim.  Nevertheless, in the October 2009 decision letter, the RO explained that verification of military service is the responsibility of the National Personnel Records Center (NPRC) and that its findings are binding on VA.  Further, the RO explained that the NPRC had 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.  As such, he was found to be not legally entitled to payment from the FVEC Fund.  

Thereafter, the appellant submitted additional evidence and argument on several occasions.  He was again notified of the evidence and information necessary to establish eligibility for compensation under the FVEC, as well as the responsibilities of the appellant and VA in obtaining such evidence, in March 2011.  He was also notified that he could have a representative to assist him with his claim at that time, but he opted to proceed without representation.  The agency of original jurisdiction subsequently readjudicated the claim several times, most recently in a January 2013 Supplemental Statement of the Case.  As such, the timing defect of the notice has been cured.  See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). 

Moreover, to the extent that the appellant was notified of specific information regarding veteran status, the Board finds that such error is not prejudicial.  As set forth in more detail below, the service department has certified on multiple 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.  VA is bound by these certifications.  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."). 

In light of the binding certifications, any VCAA notification error is non-prejudicial because the appellant is not entitled to the benefit as a matter of law.  See Palor, 21 Vet. App. at 332-33 ("[I]n 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 NPRC's refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error."); Valiao v. Principi, 17 Vet. App. 229 (2003) (determining that VCAA notice error was nonprejudicial where appellant was not entitled to benefit as a matter of law).  

Concerning the duty to assist, all necessary evidence relative to this claim has been obtained and associated with the claims file.  As discussed below, the RO sought verification of the appellant's service from the NPRC on multiple occasions based on additional information and evidence that was submitted by the appellant, most recently in January 2013, as directed in the prior Board remand.  The NPRC has repeatedly certified, however, that he 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.  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).  

No additional information has been submitted since the last negative certification that would warrant a further request to the NPRC.  There is also no need for a VA examination or medical opinion given the nature of the issue on appeal.  All appropriate efforts have been made to obtain evidence to substantiate the claim.  

Accordingly, under the circumstances of this case, no further notification or development action is necessary.  The prior Board remand directives were completed, and 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).  Moreover, the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive.  See 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 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).  Nevertheless, the service of certain Filipino veterans does not entitle them to receive full benefits administered by the Secretary U.S. Department of Veterans Affairs (Secretary).  See 38 U.S.C.A. § 107.

The American Recovery and Reinvestment Act (Act), which was signed into law on February 17, 2009, 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.  It is clear, then, that service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces."); see also Dacoron v. Brown, 4 Vet. App. 115 (1993).  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 the present case, the appellant has submitted several documents in support of his claim for compensation from the FVEC Fund: an Affidavit for Philippine Army Personnel (PA AGO Form 23) dated in January 1946 indicating that the Veteran was a "civilian guerilla" with service from March 1944 to December 1945; a January 2010 certification from the Office of the Adjutant General, Armed Forces of the Philippines, indicating military service from March 1944 to December 1945; a March 1946 Special Order issued by Headquarters, Sixth Provisional Station Complement, Philippine Army, indicating the appellant was discharged from service in April 1946; and a July 1996 form from the Republic of the Philippines, Department of National Defense, Philippines Veterans Affairs Office indicating the Veteran's army serial number and demographic information.  

The agency of original jurisdiction submitted each of these documents, as well as the Veteran's reported demographic information, to the NPRC for certification of whether the appellant had qualifying service.  Each time, however, the NPRC determined that the appellant had no qualifying service as a member of the Philippines Commonwealth Army or the recognized guerillas in the service of the U.S. Armed Forces, or that no change in the negative response was warranted based on the new evidence received.  See NPRC responses dated in September 2009, April 2011, December 2011, April 2012, December 2012, and January 2013.  

The Board has carefully considered the documentation submitted by the appellant.  Such documents do not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service.  As such, they 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 FVEC Fund.  In particular, several of the  documents were clearly issued by the Armed Forces of the Philippines or the Philippine Army, not by a U.S. military service department.  There is no DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge of record.  To the extent any of the submitted documents were issued by a U.S. military service department, they do not contain sufficient information as to the length, time and character of service, or verification of such information, to establish eligible service in the U.S. Armed Forces.  See 38 C.F.R. § 3.203(a).  

Moreover, the service department has considered all of the information contained in the documentation submitted by the appellant, and has repeatedly certified that he 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.  As noted above, VA is bound by such certifications.  See Palor, 21 Vet. App. at 330 (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" (quoting Soria, 118 F.3d at 749)); Mercado v. Shinseki, 11-0423, 2012 WL 952745 (Vet. App. Mar. 22, 2012) (same, non-precedential).

In summary, the evidence of record does not establish the requisite service to qualify the appellant for payment from the Filipino Veterans Equity Compensation Fund.  Therefore, the law is dispositive, and the claim must be denied due to lack of legal entitlement.  Sabonis v. Brown, 6 Vet. App. 426 (1994).







(CONTINUED ON NEXT PAGE)


ORDER

Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied.


____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs