Citation Nr: 1312932	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  10-49 534	)	DATE
	)
	)

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


THE ISSUE

Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. 


ATTORNEY FOR THE BOARD

K. M. Schaefer, Associate Counsel










INTRODUCTION

The appellant, who served with the army of the Republic of the Philippines, had no recognized service with the Philippine Commonwealth Army or recognized guerrillas in the service of the United States Armed Forces. 

This matter comes to the Board of Veterans' Appeals (Board) from a January 2010 letter decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Manila, Philippines.

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 appellant does not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas in the service of the Armed Forces of the United States. 


CONCLUSION OF LAW

The criteria for entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund have not been met.  38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012).







REASONS AND BASES FOR FINDING AND CONCLUSION

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claims and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the appellant was not provided with a VCAA notification letter until September 2012, after the initial adjudication of the claim in January 2010.  Nevertheless, the Board finds that the Veteran has not been prejudiced by the untimely nature of the September 2012 notice.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby).  Specifically, the Board observes that as a matter of law, providing the Veteran with VCAA-compliant notice prior to a readjudication "cures" any timing problem resulting from any deficiency in notice content or the lack of notice prior to an initial adjudication.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), citing Mayfield v. Nicholson, 444 F.3d 1328, 1328 (Fed. Cir. 2006).  A statement of the case or supplemental statement of the case constitutes a "readjudication decision" that complies with all due process requirements if preceded by adequate VCAA notice.  See Mayfield, 499 F.3d.  In the present case, subsequent to the September 2012 letter, a supplemental statement of the case was issued, thereby rectifying the timing deficiency of the September 2012 letter.

Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied.  See Mayfield, 444 F.3d at 1333.  Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision.

VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the claim.  The appellant's records of service in the Philippine Armed Forces have been reviewed by both the AOJ and the Board in connection with adjudication of the claim.  The appellant has not identified any additional records that VA needs to obtain to ensure an equitable adjudication of the claim. 

In this case, the appellant submitted a copy of an Affidavit for Philippine Army Personnel and an application with the Philippine Veterans Affairs Office for Old Age Pension wherein he certified that he served as a recognized guerrilla with the Philippine Army.  He has also provided a copy of Certification of his military status from the General Headquarters, Armed Forces of the Philippines, Office of the Adjutant General.  Three requests were made to the National Personnel Records Center (NPRC) for affirmation of recognized guerrilla service for the appellant.  The third request, dated in October 2012 included copies of the above documents.  Thus, the Board finds that VA has complied with the due process requirements of the claim, and that it may proceed to adjudication of the claim on the merits.  See id.

II. Analysis

The appellant seeks entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund.  See the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, section 1002.  Section 1002(d) of that Act defines a person eligible for such a payment as 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. 

The case turns on whether the appellant has the requisite military service.  For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial 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 VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a). 

When a claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c).  The United States Court of Appeals for Veterans Claims (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. 530, 532 (1992); see Venturella v. Gober, 10 Vet. App. 340 (1997). 

The appellant has offered multiple designations for his purported guerilla unit: Prov Battery of the 101st Field Artillery,  "D" Company of the 106th Division, 49th PC Company; Laguna PC Signal Team, 81st MP Company PA Midsayup Col; "C" Company of the 1st Battalion of the 101st Field Artillery; "B" Company, 1st Battalion, 117th Infantry of the 109th Division, Attached 8th Army; "B" Company of the 118th Regiment; Headquarters Service Troops, 106th Division; and "D" of the 101st Field Artillery.  The Affidavit for Philippine Army Personnel, document from the Philippine Veterans Affairs Office, and Certification from the Office of the Adjutant General together provide the above unit information and demonstrate that the appellant was a guerrilla, but they do not suggest that he served in a unit associated with the U.S. Armed Forces. 

As discussed, the record shows that the RO requested a determination from the pertinent U.S. service department as to whether the appellant had service as a recognized guerrilla.  In July 2009, September 2010, and October 2012, the appropriate service department indicated 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.  The October 2012 certification in particular was based on a review of all of the documents submitted by the appellant regarding the dates and nature of his service during World War II. 

The appellant has not submitted any service document that establishes service as a recognized guerrilla with the U.S. Armed Forces.  None of the other documents he has submitted are of the type acceptable as service documents establishing the requisite status. 

The Board acknowledges that the appellant is in receipt of pension benefits from the Philippine government based on his military service.  However, a determination by the Philippine government that the appellant is entitled to benefits under a Philippine program is of no relevance to the question of eligibility for benefits under the Filipino Veterans Equity Compensation Fund. 

The service department has considered the question of the appellant's military status on several occasions, including a review of the documentation of record.  However, each time, a negative response was received.  In light of the service department's certification that the appellant did not have service as a recognized guerrilla with the U.S. Armed Forces, the Board finds that the preponderance of the evidence is against the claim; therefore, the claim must be denied. 


ORDER

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




____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs