Citation Nr: 1312011	
Decision Date: 04/11/13    Archive Date: 04/19/13

DOCKET NO.  11-03 064	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

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


ATTORNEY FOR THE BOARD

K. Hudson, Counsel


INTRODUCTION

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 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 Filipino Veterans Equity Compensation Fund. 

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 United States Armed Forces during World War II. 


CONCLUSION OF LAW

The requirements for payment from the Filipino Veterans Equity Compensation Fund have not been met.  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 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance (VCAA) Compliance

Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a)(1) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

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, in a letter dated in September 2012, the appellant was provided with an explanation of the evidence needed to establish entitlement to Filipino Veterans Equity Compensation (FVEC), as well as of his and VA's respective obligations in obtaining specific types of evidence.  Although the appellant was not provided with the required notification prior to the initial adjudication of the claim, the Board finds that no prejudice has resulted.  After affording the appellant the opportunity to submit additional evidence and argument, the RO reconsidered the claim in the January 2013 Supplemental Statement of the Case.  See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); Medrano v. Nicholson, 21 Vet. App. 165 (2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a Statement of the Case, is sufficient to cure a timing defect).

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 United States Armed Forces during World War II.  No new, relevant evidence has been received since the last certification was obtained from the National Personnel Records Center (NPRC) in November 2012.  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.  

Filipino Veterans Equity Compensation Fund Entitlement

The appellant claims that he is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund, based on World War II service as a Recognized Guerrilla.  
 
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 Filipino Veterans Equity Compensation 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, 200-02 (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).

Here, the appellant filed a VA compensation claim in November 1953.  Although in connection with his current claim, it was noted that the prior file had been destroyed, copies of documents pertaining to that earlier claim have been retrieved, including the appellant's claim filed at that time.  

In addition, the National Personnel Records Center (NPRC) certified, in March 1954, 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.  Accordingly, the appellant's claim for VA compensation was denied in March 1954, on the basis that he had no qualifying service.  

The appellant's current claim was received in February 2009.  In support of his claim, he submitted an affidavit signed in May 2010, in which he described his claimed service.  He stated that he joined Guerrilla Forces of the 6th Military District on January 1, 1944.  After training, he said he was assigned to "G" Company, 2nd Battalion, 66th Infantry Division Combat Team as a rifleman.  He said that that his unit had engaged in harassing and raiding garrisons, engaged in firefights, ambushed foot patrols, blown up bridges and power lines, cut telephone poles into pieces, and other activities.  He said that as a result, he became sick, and was sent home, where he received medical treatment.  After that, he again reported to military control, and was assigned to Headquarters and Headquarters company, 5th Battalion, 6th Provisional Station Complement, Philippine Army at Camp Tiring.  He said he was honorably discharged in March 1946.  

The appellant also submitted a copy of a "Special Order" dated in March 1946, noted to be with the approval of the Commanding General, Army Forces of the Western Pacific, Headquarters, 6th Provisional Station Compliment [sic], Philippine Army, dated in March 1946, stating that the appellant was discharged from active service in March 1946.  This document was not signed by any of the authorizing officials.  

The appellant has also submitted a number of documents regarding entitlement to benefits authorized by the Philippine government, based on his status as a World War II veteran, including entitlement to educational assistance, Civil Service Veterans preference, and an old age pension provided by the Veterans Affairs Office (PVAO), as well as a Total Administrative Disability pension as a World War II veteran.  

However, all of these documents were issued by the Philippine government, and not a United States 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 October 2010, the RO requested that the NPRC provide AGUZ Form 632 and reverify the appellant's service.  The NPRC responded, in November 2010, certifying that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  

In January 2011, the appellant submitted additional evidence, in the form of two affidavits dated in November 1955 from individuals who stated that they served with the USAFFE, and that they personally knew the appellant, who joined the Recognized Guerrilla Forces of the 6th Military District under the command of "G" Company, 2nd Battalion, 66th Infantry Regiment, and that he served honorably up to his date of discharge in March 1946 at the 6th Provisional Station Compliment [sic] at Camp Tiring.  The appellant stated that the two affiants were now deceased.

In addition, in February 2011, the appellant submitted an Affidavit for Philippine Army Personnel (PA Form 23), dated in March 1946.  In this document, the appellant reported that he had joined the guerrilla forces in January 1944, and had been assigned to the "G" company, 2nd Battalion, 66th Infantry Regiment as a rifleman.  He said he was in several battle engagements, which he identified by location.  He said that he contracted pulmonary tuberculosis, and was sent home for treatment in December 1944, where he remained until he reported for processing in March 1946.  He said he did not receive any official pay or government quarters during his service.  

In September 2012, the newly received affidavits and PA Form 23 were forwarded to the NPRC, with a request for verification.  The RO also noted that his name was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained at the Manila RO.  The NPRC responded, in November 2012, again certifying that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  

Thus, the NPRC 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 United States Armed Forces.  The certifications were based on all available evidence, including the affidavits, Form 23, and other evidence submitted on his behalf.  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 United States Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has reached the same conclusion.  See e.g. Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997) (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 United States service department, nor do they contain the necessary information to establish entitlement to the benefit sought.  His entitlement to receive benefits from the PVAO as a World War II veteran is not recognized by the United States Department of Veterans Affairs.  Although there is a record of an affidavit filed in March 1946, no qualifying service verified by the United States service department has been shown, despite multiple attempts at verification, and his name is not on the RRGR maintained at the Manila RO.  

The NPRC 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 Filipino Veterans Equity Compensation Fund, 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). 


ORDER

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



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs