Citation Nr: 1312759 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 12-16 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been received sufficient to reopen the appellant's claim for basic legal entitlement to a one-time payment from the Filipino Veteran's Equity Compensation (FVEC) Fund, and, if so, whether that benefit may be granted. REPRESENTATION Appellant represented by: Mr. Luke Perry, One Time Representative for Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant does not have any recognized active military service in the Armed Forces of the United States. This matter comes to the Board of Veterans' Appeals, hereinafter the Board, on appeal from a letter decision issued in July 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In that action, the RO reopened the appellant's claim for benefits and then denied his claim for one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund on the basis that he had no valid military service. Although the RO has considered the claim on a de novo basis, the Board must initially determine whether new and material evidence has been submitted regardless of the RO's actions. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). The Board must address the question of new and material evidence in the first instance because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of the claim. Barnett; Hickson v. West, 11 Vet. App. 374, 377 (1998). The appellant's one-time representative has submitted additional evidence that has not been reviewed by the agency of original jurisdiction. However, the representative has included a written waiver of this procedural right with the evidence received. 38 C.F.R. §§ 19.37, 20.1304 (2012). Thus, the Board will consider the newly submitted evidence in the first instance. 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). FINDINGS OF FACTS 1. The Board, in a Decision issued in August 2010, concluded that the appellant was not entitled to a one-time payment from the FVEC Fund. The appellant did not request reconsideration of that action. 2. The additional evidence associated with the appellant's claims file since August 2010 Board Decision is not cumulative or redundant of evidence previously considered and by itself, and when considered with previous evidence, relates to unestablished facts necessary to substantiate the appellant's claim for possible benefits. 3. 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. CONCLUSIONS OF LAW 1. The Board Decision of August 2010, which found that the appellant was not entitled to a one-time payment from the FVEC Fund, is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1100 (2012). 2. New and material evidence has been presented sufficient to reopen the claim of whether the appellant has basic legal entitlement to a one-time payment from the FVEC Fund. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156 (2012). 3. The appellant did not have the requisite service to entitle him to payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence A. Veterans Claim Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist veterans in substantiating claims 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). In this case, the Board is reopening the appellant's claim for FVEC benefits. There is no need for further notice or assistance to aid the appellant in substantiating this aspect of his claim. B. New and Material Evidence The appellant's claim for entitlement to a one-time FVEC benefits has been the subject of an adverse prior final decision by the Board. Board decisions are final when issued, unless the Board Chairman orders reconsideration of the decision. 38 C.F.R. § 20.1100(a). As a result, the claim may now be considered on the merits only if new and material evidence has been received since the last Board adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Evidence is considered "new" if it was not previously submitted to agency decision makers; "material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Additionally, the evidence necessary to meet the criteria of raising a reasonable possibility of substantiating the claim should be interpreted as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). After the enactment of the legislation that brought about the Filipino Veteran's Equity Compensation (FVEC) Fund, the appellant submitted a claim for benefits to the RO. In order to be eligible to receive monies from the Fund, it was required of the appellant to submit proof showing that he had active military service as a member of the armed Forces of the United States, to include service in the Philippine Commonwealth Scots or Recognized Guerilla Forces. As such, along with his application for benefits, the appellant submitted documented from the Government of the Philippines (the Philippine Department of Veterans Affairs) that showed "service" in the 2nd Guerilla Brigade of the Leyete Area Command from December 1942 to March 1945. The National Personnel Records Center (NPRC) was contacted by the Manila RO and asked to confirm the appellant's service. NPRC informed the RO that the Department of the Army could not confirm that the appellant had any service under US command in the Philippine Scouts and/or Recognized Guerilla forces. NPRC further indicated that the appellant had no military service that would qualify as "active service" in the US Armed Forces regardless of what the Philippine Government had lead the appellant to believe. Based upon this information, the RO concluded that benefits could not be granted because the appellant had not served in the Armed Forces of the United States. The appellant was notified of the RO's denial and he appealed to the Board for review. The Board examined and reviewed the records contained in the claims folder and then concluded that the RO's denial was proper and correct. The appellant was notified of this decision but he did not file an appeal to the Court nor did he request reconsideration of the Board's August 12, 2010, Decision; therefore, it became final. 38 U.S.C.A. § 7104(b); 38 C.F.R. §§ 3.104, 20.302, 20.1100. When the Board denied the appellant's claim, it based its decision on the appellant's statements, the records obtained from the Philippine Government, and the records submitted to the National Personnel Records Center. Since then, the appellant has submitted additional documents; including an Affidavit for Philippine Army Personnel, affidavits from persons who reportedly know of the appellant's service, form AGNR2 from the Armed Forces of the Philippines; the appellants report of a unit he served with; settlement of arrears pay from the Philippine Ryukyus Command, Old Age Pension Application, a clearance certificate from the Second Guerilla Brigade, and a diploma of merit from the Philippine Veterans Board. This was new evidence indicating that he may have served in another unit or otherwise had qualifying service that might allow for FVEC benefits to be granted. The additional evidence submitted to VA since the prior final denial is new as it was not of record at the time of the August 2010 Board Decision. It is not cumulative in that is possibly substantiates a previously unestablished fact - that the appellant may have had service during World War II in a component of the Armed Forces of the United States. This evidence is not cumulative and has not been previously seen and reviewed in toto by the VA. It raises a reasonable possibility of substantiating the claim, inasmuch as triggered VA's duty to submit the evidence to NPRC for a redetermination of his service. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008); see Shade, (holding evidence would raise a reasonable possibility of substantiating the claim if it triggered the duty to provide an examination; this would be analogous to the duty to re-determine the appellant's service). Hence, this evidence is material because it does relate to previously unestablished facts necessary to substantiate the claim. Accordingly, the Board concludes that the appellant has submitted evidence that is new and material, and the appellant's claim is reopened. II. FVEC Claim A. VCAA Under the Veterans Claims Assistance Act of 2000 (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 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) ("[s]ince 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, although the appellant was not provided with the required notification prior to the initial adjudication of his claim, the Board finds that no prejudice has resulted. In the July 2011 decision letter, the RO explained that verification of military service was the responsibility of the National Personnel Records Center (NPRC) and that its findings were binding on VA. Because 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, he was not legally entitled to payment from the Filipino Veterans Equity Compensation Fund. After affording the appellant the opportunity to submit additional evidence and argument, the RO reconsidered his claim in the April 2012 Statement of the Case and the Supplemental Statements of the Case of July and October 2012. See Medrano v. Nicholson, 21 Vet. App. 165 (2007); Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); 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 in a Statement of the Case, is sufficient to cure a timing defect). B. Duty to Assist Under the VCAA, VA also has a duty to assist claimants in the development of a claim. This includes assisting the claimant in procuring service medical records and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). A review of the record indicates that all necessary evidence relative to this claim has been obtained and associated with the claims file. 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. The initial negative certification was in July 2011. After the appellant submitted additional information, the RO again contacted the service department and requested reverification of service for the appellant. 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). In December 2012, the service department responded again 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. Since that second negative certification, the appellant has produced no additional information which would warrant a further request to NPRC. Additionally, the issue on appeal does not involve a medical question; the Board finds that there is no need for a VA medical opinion or examination. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (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 & Supp. 2012); 38 C.F.R. § 3.159(c) (2011). C. Background In December 2010, the appellant, through his one-time representative, contacted a member of the US Senate and asked that the appellant's claim for one-time payment from the Filipino Veterans Equity Compensation Fund be reopened. It was contended that the appellant served as a lieutenant in the 2nd Guerilla Brigade Auxiliary Force IAS, Leyte Area Command, 3rd Battalion, SGB LAC, BN EX-O, Abuyog, Leyte, the Philippines. Dates of service were purported to be November 1942 to March 1945. In July 2011, the RO denied the appellant's claim on the basis that the service department had certified that he did not have the requisite military service to establish eligibility therefor. The appellant appealed this determination, noting that he had served honorably and that his "service" had been confirmed by the Philippine Government. He further intimated that the individual he served thereunder, a Colonel Puperto Kangleon was personally appointed by General D. MacArthur (USA) to "organize guerilla forces in Leyte." It was hypothesized that since General MacArthur, as the unofficial major domo of Colonial Philippines, had appointed Colonel Kangleon, and since the appellant served under Colonel Kangleon, the appellant must have served in the Armed Forces of the United States. To support his claim, the appellant, through his representative, submitted numerous documents that he contended supported his claim for benefits. Subsequently, the RO contacted the service department and requested further verification of the appellant's reported military service. The RO forwarded to NPRC copies of all of the documents provided by the appellant. In December 2012, NPRC once again 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. D. Applicable Law On February 17, 2009, the President of the United States 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 $9,000.00 (US dollars) for non-United States citizens, or $15,000 (US dollars) 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). 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 v. Derwinski, 2 Vet. App. at 532; see also Dacoron v. Brown, 4 Vet. App. 115 (1993). The U.S. Court of Appeals for the Federal Circuit (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"). E. Analysis As set forth above, the NPRC has on multiple occasions 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. In total, during the course of the first appeal and now this appeal, NPRC has four times certified that the appellant had no service in the military components of the United States Armed Forces. VA is bound by that certification. The Board has carefully considered the documentation submitted by the appellant, along with those documents proffered by the appellant's one-time representative, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 (2012) as acceptable proof of service. The documents submitted by the appellant do not 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. In any event, the Board notes that the service department has considered the information contained in that documentation and nonetheless repeatedly 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 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 The application to reopen the claim for basic entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is granted and, to that extent only, the appeal is granted. Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs