Citation Nr: 1313649	
Decision Date: 04/24/13    Archive Date: 05/03/13

DOCKET NO.  11-09 118	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
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

M. Postek, Associate Counsel



INTRODUCTION

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision by the RO that denied legal entitlement to 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 paperless claims processing system (Virtual VA) electronic file associated with the claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue decided herein.

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 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.


CONCLUSION OF LAW

The requirements for eligibility to a 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 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim 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, 3.326(a) (2012).

Under VCAA, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has held that the notice provisions of the VCAA impose a duty on VA to inform a claimant of the information and evidence necessary to establish veteran status.  Palor v. Nicholson 21 Vet. App. 325, 330-31 (2007)  ("Since 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.")

The appellant was provided the required VCAA notice in a September 2012 post-decision letter.  Contrary to VCAA requirements, the notice in this case was provided after the initial adjudication of the claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  The timing deficiency was cured by readjudication of the claim in a December 2012 supplemental statement of the case (SSOC).  Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007).

Moreover, to the extent there remained any VCAA notification error, such 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, 232 (2003); see also Palor, 21 Vet. App. at 332-33 ("Therefore, 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 can conclude only that because the appellant is 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.").  

The RO explained in the March 2010 decision that verification of military service was the responsibility of the National Personnel Records Center (NPRC), and its findings were binding on VA.  Because the NPRC certified that the appellant had no qualifying service, he was not legally entitled to payment from the Filipino Veterans Equity Compensation Fund.

VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The VCAA's duty to assist requirements apply to VA's efforts to obtain verification of service, as explained in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), and this duty was satisfied by the RO's requests for verification of service from the NPRC as discussed herein.

For the following reasons, the Board finds that VA has complied with the VCAA notification and assistance requirements; all necessary development has been accomplished, and the claim is ready to be considered on the merits.  The Board further notes that the Court has held that VCAA is not applicable to matters in which the law, and not the evidence, is dispositive.  See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).


Legal Principles and 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.  

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 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.

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto.  See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  

In sum, under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies their service.  Soria, 118 F.3d at 749.

In this case, the appellant contends that he is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund based on his recognized guerrilla service and service with the Philippine Commonwealth Army, USAFFE (U.S. Armed Forces Far East) between 1941 and 1946.

In his April 2009 claim and September 2009 supplemental written statement, the appellant indicated that he served in the 1st Company, 2nd Battalion, 61st Infantry Regiment or 65th Regiment, and provided copies of documents purporting to show the required service (Certification from Armed Forces of Philippines, Office of the Adjutant General; Form 23, Affidavit for Philippine Army Personnel).

In November 2009, the RO submitted the pertinent information (including name, date of birth, place of birth, service number, branch of service, and dates of service) and the copies of the documentation provided by the appellant to the NPRC for verification.  The RO also indicated that the appellant was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained in the Manila RO.

In January 2010, the NPRC initially certified that the appellant had no service as a member of the Philippine Commonwealth Army, including with the recognized guerrillas, in the service of the United States Armed Forces.

In both his April 2010 Notice of Disagreement and March 2011 Substantive Appeal (VA Form 9), the appellant indicated that he served as a member of both the USAFFE and recognized guerrilla service.

In September 2012, the RO again requested verification of the appellant's service from the NPRC.  This request included, among other things: the previously considered documents submitted by the appellant; a copy of the notice of disagreement (argument duplicative in the VA Form 9) indicating both USAFFE and guerrilla service; additional names under which the appellant may have served; and a list of possible units of assignment for both USAFFE and guerrilla service.  See Capellan v. Peake, 539 F.3d 1373, 1381 (Fed. Cir. 2008).  The RO again indicated that the appellant was not listed in the RRGR.  

The same day, the RO sent the appellant a letter notifying him of the information and evidence necessary to establish veteran status and asking that he send any relevant information and evidence.  Thereafter, the appellant did not submit any additional evidence.  

In an October 2012 reply, the NPRC certified that no change was warranted in the prior negative service certification.  

The documents submitted by the appellant did not include a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a).  Consequently, the RO was required to request verification from the service department, i.e., the NPRC.

The NPRC has certified that the appellant had no qualifying service.  This verification is conclusive and binding on VA, such that VA has no authority to change or amend the finding.  Duro, 2 Vet App. 532.

For the foregoing reasons, the appellant had no qualifying service.  As such, the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund have not been met, and the claim must be denied.  See Sabonis v. Principi, 6 Vet. App. 426, 429-30 (1994) (where law and not evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under the law).


ORDER

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


____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs