Citation Nr: 1312730 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-27 445A ) 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. ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The appellant claims military service during World War II. This matter comes to the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a determination of the VA Regional Office (RO) in Manila, the Republic of the Philippines that denied a claim for a one-time payment from the Filipino Veterans Equity Compensation Fund. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claim. A review of the electronic claims file does not reveal any additional records pertinent to the issue on appeal. 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 through the National Personnel Records Center (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 U.S. Armed Forces during World War II. CONCLUSION OF LAW The appellant does not have the requisite service to entitle him to a 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 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION As set forth in more detail below, the service department, through 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 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) ("The U.S. Court of Appeals for the Federal Circuit's (Federal Circuit) decision 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 certification, any Veterans Claims Assistance Act (VCAA) notification error is non-prejudicial as the appellant is not entitled to the benefit as a matter of law. See Valiao v. Principi, 17 Vet. App. 229 (2003). In any event, in a September 2011 letter, the RO notified the appellant of the evidence needed to substantiate his claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. Thereafter, claim was readjudicated, most recently in a January 2013 Supplemental Statement of the Case (SSOC). 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 VA. 38 U.S.C.A. § 107 (West 2002). On February 17, 2009, the President signed the American Recovery and Reinvestment Act, intended for "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization." See Pub. L. No. 111-5, 123 Stat. 115 (2009). The legislation included a provision 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, 200-202 (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). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for ninety days for a line of duty disability. 38 C.F.R. § 3.203(b) (2012). 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) (2012). In March 2009, the appellant submitted a claim for one-time payment from the Filipino Veterans Equity Compensation Fund. He reported that he had served with "D" Co., 2nd Battalion, 4th Infantry Regiment of the Philippine Army from July 1941 to October 1945. In support of his claim, he submitted an Affidavit for Philippine Army Personnel (PA AGO Form 23), which indicated that he served with D Co., 2nd Battalion, 4th Infantry Regiment in Bataan from July 1941 to April 1942. He stated that he was with the Presidential Guard from July 1941 to December 1941 and was made a rifleman on induction to D Co., 2nd Battalion, 4th Infantry Regiment up until the surrender of Bataan in April 1942. At that point, he stated that he became a prisoner of war (POW) for three days until he escaped. He was a civilian from April 1942 to February 1945. He was processed from service at Pampanga in February 1945. In addition, the RO received AGUZ Form 632 signed by the Adjutant General in August 1980. The form indicates that the appellant did not have recognized guerrilla service and no other service. The RO contacted the service department and requested verification of the appellant's reported service. In its request, the RO included the information he provided. In a response received in February 2010, the NPRC responded 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. In connection with the claim, the appellant submitted September 1979 and March 1989 affidavits signed by the Assistant Adjutant General of the Armed Forces of the Philippines. The affidavits certify that the appellant served with "D" Company, 2nd Battalion, 4th Infantry Regiment and was paid in arrears from December 1941 to April 1942. He was also paid as a private from February to May 1945, and as a sergeant from May 1945 to October 1945. The appellant also submitted a discharge record from the Philippine Army, which indicates that he enlisted in March 1941 and was honorably discharged in October 1945. In addition, the appellant submitted a copy of an ownership share from the Philippine Veterans Bank, a copy of his United States passport, and senior citizen cards issued by the Republic of the Philippines and the State of California. In his May 2010 notice of disagreement, the appellant indicated that he was a member of B Co., 3rd Engineer Construction Battalion. He also submitted a copy of an enlistment record, which indicated that he enlisted in the Presidential Guard in March 1941, and a copy of an "indorsement" record which indicates that he detached from "B" Co., 3rd Engineer Construction Battalion in October 1945. In response, the RO contacted the service department and once again requested verification of the appellant's reported service. In November 2010 and December 2011, the NPRC responded 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. In November 2011, the appellant requested verification under a different name. In January 2012, the NPRC responded that the appellant, under the reported alias, 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. In May 2012, the RO contacted the service department to request re-verification based on the September 1979 and March 1980 certifications from the Assistant Adjutant General of the Armed Forces of the Philippines. In June 2012, the NPRC requested all four pages of PA AGO Form 23 and a listing of all of the appellant's brothers and sisters. In July 2012, the appellant provided a listing of his next of kin. In October 2012, the RO forwarded this information along with all four pages of the PA AGO Form 23 to the service department. In November 2012, the NPRC indicated that no change was warranted in its prior negative service certification. The Board has carefully considered the documents submitted by the appellant but finds that they fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The documents he submitted were not issued by the service department, nor do they contain the necessary information to establish entitlement to the benefit sought. As such, those documents 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 Filipino Veterans Equity Compensation Fund. The only recourse was to request verification of service by the service department. In this regard, the NPRC has certified five 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. The Board is bound by this certification. See e.g. Capellan v. Peake, 539 F.3d 1373 (Fed Cir 2008). That decision noted that evidence submitted should be referred to the NPRC. This was done repeatedly in this case and pertinent service could not be verified. As the service department through the NPRC 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. ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs