Citation Nr: 1313013 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-48 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The appellant contends that he served as a recognized guerilla. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2009 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the appellant's claim. The appellant appealed that decision to BVA, and the case was referred to the Board for appellate review. This appeal was previously before the Board in November 2011 and December 2012. The Board remanded the claim so that the appellant could be afforded a hearing. The case has been returned to the Board for further appellate consideration. A hearing was held on March 14, 2013, by means of video conferencing equipment with the appellant in Manila, the Republic of the Philippines, before Kathleen K. Gallagher, a Veterans Law Judge, sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. 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 FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The notice requirements of VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Here, the appellant was not afforded VCAA notice prior to adjudication of his claim in December 2009. He was informed of the information necessary in the October 2010 Statement of the Case, and during an informal conference at the RO in July 2011 (after the appellant appealed his claim to the Board). As such, proper notice was not provided to the appellant. The VCAA does not affect matters on appeal when the issue is limited to statutory or regulatory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (interpreting that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). There is no dispute as to the facts involved, and this is a matter where the law and not the facts are controlling. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Pursuant to the holding in Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008), the RO has sought and obtained further input from the NPRC in this case which has reiterated that the appellant is without the requisite military service as to render him an eligible person under the American Recovery and Reinvestment Act for a one-time payment from the Filipino Equity Compensation Fund. Thus, there is no possibility that any additional notice or development would aid in the substantiation of his claim. 38 U.S.C.A. §§ 5103, 5103A. Additionally, the appellant supplied statements and affidavits regarding the aliases he reported using during service, as well as records from the Philippine government regarding his military service. The appellant was an active participant in his claim and showed actual knowledge of the type of information and evidence necessary to support his claim. Under the American Recovery and Reinvestment Act, enacted February 17, 2009, 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 (Act) § 1002, Pub. L. No. 111-5. Payments for eligible persons are either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Section 1002 of the Act addresses payments to eligible persons who served in the United States Armed Forces in the Far East during World War II, providing in § 1002(c)(1) 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 (February 17, 2009, through February 16, 2010), 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. An eligible person under Section 1002(d) of the Act 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. This case involves the legal issue of whether his service qualifies for payment from a fund established by Congress. The RO has obtained relevant information from the service department, and the appellant has obtained records pertaining to his service. The appellant is well aware of the information and evidence necessary to substantiate his claim, and argues that his name should be on the "Missouri List." The Board consequently finds that he has not been prejudiced by VA's failure to notify him of the allocation of evidence-gathering responsibilities in this case. As to VA's duty to assist the appellant, there is no suggestion by the appellant or the record of any outstanding evidence. During his hearing the appellant indicated that the fire at the NPRC building in 1973 may have destroyed his records. VA obtained two determinations by the service department, and the appellant has submitted documents. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) that, in the context of a Dependency and Indemnity Compensation claim, where service department certification of an appellant's active service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department. The Federal Circuit in Capellan held that it was a violation of VA's duty to assist not to request service department review of additional or new documents or evidence provided by an appellant concerning an appellant's active service after the initial service department certification. See Capellan, 539 F.3d at 1380-81. The Federal Circuit further held that "the correct interpretation of the governing statues and regulations requires that a claimant's new evidence be submitted and considered in connection with a request for 'verification of service from the service department' pursuant to 38 C.F.R. § 3.203(c) ." Id. In this case, the RO submitted the appellant's names (including all aliases) to the service department on two occasions, and last received a determination from that agency in October 2010. VA has complied with Capellan. During his 2013 hearing, the appellant reiterated that he used the aliases during service, but did not provide any new alias names at that time. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a) , 5103A, or 38 C.F.R. § 3.159. Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Factual Background and Analysis 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 contends that he served from December 1942 to July 1946 with the 3rd Platoon, 1st Co., 44th Inf. Reg., 44th Division, Hunters R.O.T.C., and that he trained as a military police officer with the United States Army. He indicated that he had two service numbers: [redacted] and [redacted]. An affidavit from V.G.L. noted the appellant served in the same unit, the Hunters R.O.T.C., although V.G.L. indicated it was "H" Co. 44th Reg., 44th Div. The appellant also noted that he served under the alias of [redacted]. In November 2009, the National Personnel Records Center (NPRC) responded to a request for information (VA Form 21-301) 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 July 2010, the appellant provided an Affidavit for Philippine Army Personnel from August 1947, and stamped "Authenticated" in 1993. In this document, the appellant does not claim that he served in the US Armed Forces, Far East (USAFFE), but rather a civilian guerilla unit. While this document acknowledges the appellant was a guerilla, but does not suggest that he served in a unit associated with the U.S. Armed Forces. The record noted that the unit served as security guards and combat and "mopping operation" attached to the 6th Army Div, U.S.A., and that the "unit survived from the voluntary contributions of loyal civilians." Also in July 2010, the appellant provided a Military Police Training School certificate dated June 1945 and noted to be from the "USAFFE." Another certificate notes he served with the 13th Military Police Command of the Army of the Philippines in April 1945. On a November 2010 copy of a request to the NPRC, the appellant noted that the Hunters R.O.T.C. was a guerrilla unit. The appellant has indicated that he used aliases during his service, to include [redacted], [redacted], [redacted], and [redacted]. In October 2010, the NPRC responded to a second VA Form 21-3101 request, which included five of the appellant's aliases. This time, the request included both his 13th Military Police USAFFE unit and his Hunters R.O.T.C. guerrilla unit. The NPRC again asserted 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 October 2010 SOC indicated that the individual records with the NPRC are maintained in alphabetical order, and a potential claimant's service is verified by the records associated with his name. If a name is a common one or if there are minor discrepancies in spelling or the middle initial, NPRC will compare the service number, date of birth, place of birth and names of next of kin provided with the records they have on file. If the NPRC needs additional information to confirm a record of service, it will contact the RO to provide the additional information. During his March 2013 hearing, the appellant again noted that he served under the alias of [redacted]. And he reported he served with a recognized guerilla unit. The appellant has not submitted any service document to establish his service. Further, the Board notes that he has not submitted a Form DD-214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1), nor has he indicated that such documentation exists. Moreover, the document submitted by the appellant is not of the type acceptable as service documents establishing the requisite status. See 38 C.F.R. § 3.203(a)(1); see also Duro, Venturella and Capellan, all supra. In light of the NPRC's certifications that the appellant did not have service with the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States 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. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs