Citation Nr: 1313053	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  09-33 732	)	DATE
	)
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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.


WITNESSES AT HEARING ON APPEAL

The appellant and daughter


ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel



INTRODUCTION

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision of the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO), which determined that the appellant did not have qualifying service to be eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund.

The Board remanded the claim in August 2010 to schedule the appellant for a Board hearing.  The appellant testified at a hearing before RO personnel in October 2010.  A copy of the transcript was obtained and associated with the record pursuant to a December 2010 remand by the Board.

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 appellant does not have recognized active military service for the purpose of obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. § 501(a) (West 2002); 38 C.F.R. § 3.203 (2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

VA has a duty to notify the claimant of the shared obligations of the claimant and VA in developing his claim 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 & Supp. 2012); 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 claim, 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

The United States Court of Appeals for Veterans Claims (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 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) (noting that, since veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of 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 May 2009 notification letter, the RO explained that verification of military service was the responsibility of the National Personnel Records Center (NPRC) and 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. 

To the extent that the notification provided to the appellant did not include specific information regarding veteran status, the Board finds that such error is not prejudicial.  As set forth in more detail below, the service department has twice 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); Palor, 21 Vet. App. at 332 (noting that the decision in Soria 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 certifications, any notification error is non-prejudicial as the appellant is not entitled to the benefit sought as a matter of law.  See Valiao v. Principi, 17 Vet. App. 229 (2003); see also Palor, 21 Vet. App. at 332-33 (in assessing whether the appellant was prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status, the Court could conclude only that because the appellant was currently ineligible for VA benefits as a matter of law based on the [the service department's] refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error).

VA has also fulfilled its duty to assist the appellant in making reasonable efforts to identify and obtain relevant records in support of the claim.  As detailed below, the appellant has submitted information and several documents, and this has been reviewed by both the RO 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. 

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 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 a veteran's active service after the initial service department certification.  Id., 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, previous requests were made to the NPRC for affirmation of recognized guerrilla service for the appellant during the course of prior claims.  A more recent request to the NPRC was made in January 2011 to take into consideration all of the new information provided by the appellant.  Thus, the Board finds that VA has complied with the duty to assist and due process requirements of the claim, and that it may proceed to adjudication of the claim on the merits.

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 February 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. 

For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service...."  However, nothing in this act "prohibit[s] a person from receiving any benefit (including health care, survivor, or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of this Act." 

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. 

The question involved in this case is whether the appellant has the requisite military service necessary to receive benefits.  For the purpose of establishing 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) (2012).  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 appellant claims that he served from January 1941 to March 1946 with the Medical Company, 3rd Battalion, 13th Infantry of the USAFFE (U.S. Armed Forces, Far East).  In support of his present claim, the appellant submitted medical certificates from physicians; a December 1946 memorandum from the Republic of the Philippines, City of Manila regarding a request for inclosure [sic] of the name of the appellant in the Approved List of Troops of the 121st Infantry USAFIP, NL [United States Armed Forces in the Philippines - Northern Luzon]; an October 1973 notice of pension award from the Philippine Veterans Affairs Office; and other evidence that previously had been submitted in support of prior claims.  Given that the present claim involves a recently enacted potential benefit, the Board will consider the current claim on the merits rather than as one to reopen a previously denied claim.

In October 2010 the appellant's daughter testified on the appellant's behalf and acted as his interpreter.  She presented and discussed various documents in support of the claim. 

The appellant had previously requested legal entitlement to VA benefits, and the Board denied the claim in October 1995, February 2002, September 2004, and January 2009 because he had no verified active military service with the United States Armed Forces.  In support of his previous claims, the appellant submitted a Certificate of Discharge from the Commonwealth Army of the Philippines dated in March 1946, indicating that he was discharged in March 1946; and a June 1948 memorandum from the Recovered Personnel Division of the Headquarters of the Philippines, Ryukyus Command regarding a redetermination of the status of an individual under the Missing Persons Act.  He also submitted other copies of documents from the Philippine Army and multiple service comrade statements, conveying that he served with the United States Armed Forces in the Philippines during World War II and that he was held as a prisoner of war for a period of time.  

The information from the appellant was forwarded to the service department.  In a February 1993 statement, the U.S. Army Reserve Personnel Center indicated that the evidence submitted was insufficient to warrant a change in the prior negative certification in December 1950, which concluded that the appellant did not have recognized guerrilla service nor was he a member of the Commonwealth Army in the service of the Armed Forces of the United States.

Subsequently, he submitted copies of documents in support of his claim including the following: a November 1945 Affidavit for Philippine Army Personnel; a May 1968 Order of Payment issued by the Republic of the Philippines Department of National Defense; December 1999 and January 2001 statements from an administrator of the Philippine National Red Cross, indicating that the appellant served as a medical aide with the 13th Infantry Medical Company, 3rd Battalion, USAFFE from 1941 to March 1946 and was a prisoner of war from March 12 through June 6, 1943; a 1964 letter from the Philippine Veterans Administration regarding disability benefits; medical records and statements from various doctors; and a statement from the appellant notifying VA of additional names under which he may have served.

The additional information from the appellant was forwarded to the service department.  In a June 2005 statement, the NPRC indicated 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 appellant submitted additional documents and information regarding his participation with the Veterans Federation of the Philippines, his bank account, applications to the Philippine Veterans Board for renewal of educational benefits, and a May 2007 certification from the Philippine Veterans Affairs Office regarding old age pension benefits.

After the appellant disagreed with the RO's May 2009 denial of the claim and submitted to the RO the additional evidence cited above in support of his present claim, the additional information, including a list of names under which the appellant may have service, was sent to the service department, and in January 2011 the NPRC reported that no change was warranted in the prior negative determination.

The appellant did not submit a DD Form 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 certificate of discharge and other documents from the Philippine Army, the copies of records from the Philippine Veterans Affairs Office, and the other documents submitted in support of the claim fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department, but rather documents from the Philippine government.  Documentation from the appellant's bank, records from Philippine veterans service organizations, and the various lay statements describing his military service similarly fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service.  As such, those documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including a one-time payment from the Filipino Veterans Equity Compensation Fund. 

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 United States Armed Forces.  This verification is binding on VA such that VA has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet App. 530, 532 (1992).  The proper course for an appellant who believes there is a reason to dispute the report of the service department or the content of military records is to pursue such disagreement with the service department.  Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).  Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits administered by VA.  This department is bound to follow the certifications by the service departments (via the NPRC) with jurisdiction over United States military records. 

Based upon the record in this case, 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 appellant may not, therefore, be considered eligible for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.


ORDER

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs