Citation Nr: 1312096 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 10-27 356A ) 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 J. Chapman, Associate Counsel INTRODUCTION The claimant/appellant alleges he had recognized guerrilla 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 a July 2009 decisional letter by the Manila RO that denied his claim seeking compensation from the Filipino Veterans Equity Compensation Fund. Because veteran status of the person based on whose service the benefit is sought is a threshold requirement for establishing entitlement to such benefit, that is the matter before the Board. In May 2012 a videoconference hearing before the Board was scheduled at the appellant's request; however, the appellant failed appear for such hearing (without giving cause or expressing a desire to have the hearing rescheduled). Hence, the Board finds the hearing request to be withdrawn. Later in May 2012 this matter was remanded for additional development. 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. CONCLUSION OF LAW The appellant is not a veteran, and is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 107 (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties 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 element 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 has 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. 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 re-certification of his service/ nonservice is necessary. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Factual Background Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). In February 2009, the appellant submitted a VA Form 21-4138 to apply for a one-time payment from the Filipino Veterans Equity Compensation Fund. He contended that he had recognized guerilla service, and listed his name, his address, his date and place of birth, his service number, the unit in which he served, his dates of service, his parents' names, the name of his current spouse, and the dates of their marriage. In March 2009, the RO submitted the above information to the National Personnel Records Center (NPRC) and requested that they furnish any and all records that they might have for the appellant. In May 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. The appellant then submitted the following documents in connection with his claim: * A photocopy of a certification from the Philippine Veterans Affairs Office (PVAO) that the appellant was an active pensioner and was approved for old age pension. * A photocopy of a certification from the Office of the Adjutant General dated September 10, 2009, which identified his military status, the date he enlisted and separated, his rank and unit, his date and place of birth, and his father's name. * A photocopy of a certification from the Armed Forces of the Philippines dated May 2, 1994, which listed his date and place of birth, his military status, his unit, and his service discharge date. * Photocopies of certification of service from the PVAO dated December 10, 1980 and July 14, 2011. * A photocopy of an affidavit attested by [redacted] stating that he was the Adjutant of the 66th Infantry, USAFIP where the appellant belonged. * A photocopy of affidavits by [redacted] and [redacted], which attested to the appellant's character. * A photocopy of an affidavit from the appellant, wherein he indicated that his correct middle name is [redacted] and not [redacted]. * A photocopy of a joint affidavit attested by [redacted] and [redacted] stating that the middle name of the appellant is [redacted] and not [redacted]. * A photocopy of a certificate of induction dated November 4, 1944, which listed his grade and company in active duty service. * A photocopy of a list of officers approved by NLRYCOM, which listed the appellant's name. * A photocopy of the appellant's enlistment record, which listed his date of entry into service, his enlistment location, his grade and company, as well as personal information including his date of birth, height, weight, home address, and the name and address of his father. * A photocopy of the appellant's baptismal certificate. * A photocopy of an extract dated November 10, 1945, which listed the appellant's discharge date. * A photocopy of an oath of office to USAFIP North Luzon, which listed the appellant's position to Private Hospital Company. * A photocopy of an extract of special order no. 24. * A photocopy of an extract dated February 18, 1945, which listed transfer of assignment information. * A photocopy of a service record from USAFIP North Luzon Hospital Company, which listed the appellant's service dates, unit, rank, serial number, date of birth, nationality, place of birth, address, and father's name and address. * A photocopy of the appellant's Philippine Veterans Bank passbook. * A photocopy of a PVAO revalidation form, which listed the appellant's name, present address, date and place of birth and noted that he was receiving old age pension. * A photocopy of an application for pension benefits, which listed the appellant's date and place of birth, present address, as well as the date and place of birth and address for his spouse, as well as their place of marriage. * A photocopy of a PVAO Ministry of National Defense form, dated December 10, 1980, which listed the appellant's service unit and grade, and noted that the appellant's name was carried in the Approved Revised Reconstructed Guerilla Roster of 1948. * A photocopy of a certificate of relief from active duty, which listed the appellant's service number, rank, organization, and discharge date. * A photocopy of a certificate of initiation to the American Legion. * A photocopy of a roster of officers in the 66th Infantry, which listed the appellant's name. * Photocopies of receipts from USAFIP NL., Inc., the American Legion, and the Veterans Federation of the Philippines. * A photocopy of an order of payment, dated May 21, 1973. * June 2009, October 2009, August 2010, June 2010, September 2010, July 2011, and January 2012 statements from the appellant again indicating that he served in the Recognized Guerillas of the Commonwealth Army of the Philippines during World War II. * A photocopy of an extract dated December 15, 1944, which noted a promotion to private first class received by the appellant. * A photocopy of questions asked and answered during the interview in February 2009, which listed the appellant's parents' names, spouse's name and date of birth, date of marriage, place of birth, claim number, control number, year inducted, serial number, and telephone number. In November 2009, the NPRC notified the appellant that his name was not shown in the official records and archives, which list the members of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Forces during World War II. At an informal hearing/conference at the RO in January 2010 the appellant clarified his correct middle name and provided his unit of assignment. In January 2010, the RO sought re-certification of the appellant's service from the NPRC. The information provided to the NPRC in March 2009 was provided again in this request, along with the Veteran's newly provided middle name and unit of assignment. In February 2010, the NPRC 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. A May 2012 Board remand noted that since filing his original application for benefits, the appellant has provided different permutations of his name and such variations are not all included in a single service department certification request. In addition, the Board noted that the appellant had identified various units of service and had submitted evidence listing different days of birth and different dates of service. The Board directed that the RO 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, all units of service identified, all dates and locations of birth, and dates of service actually alleged. In November 2012, the RO again sought re-certification of the appellant's service from the NPRC, this time also including the information identified in the Board remand. In January 2013, the NPRC certified that there was no change warranted in the prior negative service certifications. 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 "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(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 dies before payment is made under this section, the payment 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 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. 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 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 C.F.R. § 3.203(a). He has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the U.S. Armed Forces. Therefore, VA sought service department verification of whether the appellant served in the U.S. Armed Forces in the Philippines. In May 2009, February 2010, and January 2013, based on information contained in the appellant's claims form and in the documents he subsequently submitted, 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 U.S. service department, and are therefore inadequate to establish veteran status. See 38 C.F.R. § 3.203(a). Conversely, certifications from 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 and not with VA. The appellant has provided no further evidence or information (since the January 2013 certification) that would warrant a request for re-certification of his service/nonservice 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 Filipino Veterans Equity Compensation 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 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