Citation Nr: 1313819	
Decision Date: 04/25/13    Archive Date: 05/03/13

DOCKET NO.  11-30 336	)	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.  


ATTORNEY FOR THE BOARD

B. R. Mullins, Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the 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 did 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 & Supp. 2012); 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

Duty to Notify

Under 38 U.S.C.A. § 5103 (West 2002), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide.  

The appellant was not provided with 38 U.S.C.A. §5103(a) - compliant notice in this case.  Nonetheless, the Board finds that any presumption of prejudice has been rebutted by the appellant's demonstration of actual knowledge of the information and evidence necessary to substantiate her claim.  This case turns on whether she had the requisite qualifying service in the recognized guerillas.  Throughout the appeal the appellant clearly articulated her contention that she served with a recognized guerrilla unit (i.e. 25th Red Lion Infantry Division PQOG), submitting documentation in support of her claim.  She clearly is aware that relevant evidence in this case involves evidence that the unit in which she served was one recognized by the appropriate U.S. service department.  The Board notes that the appellant does not contend that she served in the U.S. Armed Forces proper.  

Given that the appellant has presented statements and actively submitted evidence relevant to the criteria for establishing her claim, the Board finds that she has not been prejudiced by the failure to provide her with notice as to the information or evidence necessary to substantiate the claim.  In addition, the Board is unaware of any outstanding evidence that would require an explanation of the respective responsibilities of her and VA in obtaining that evidence.  The instant case involves the legal issue of whether her 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 her service.  She is well aware of the information and evidence necessary to substantiate her claim, and has not suggested that any pertinent outstanding evidence remains.  The Board consequently finds that she has not been prejudiced by VA's failure to notify her of the allocation of evidence-gathering responsibilities in this case.  

As to VA's duty to assist the appellant, again, there is no suggestion by the appellant or the record of any outstanding evidence.  VA obtained a determination regarding the appellant's service and the appellant has submitted documentation reflecting the nature of her service.  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 a veteran'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 a veteran's active service after the initial service department certification.  See id at 1380-81.  The Federal Circuit further held that "the correct interpretation of the governing statutes 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 a VA Form 21-3101 (JF) to the National Personnel Records Center (NPRC) in November 2009, along with the appellant's statement in support of her claim.  Since that time, she has submitted documents from the Philippine VA Office that are essentially duplicative of an August 1984 document already submitted as part of the appellant's initial claim.  She also submitted additional copies of her identification cards (which were already of record), as well as a record reflecting that she was entitled to a pension award from the Philippine VA Office.  None of the newly submitted evidence purports to be a service document.  It also fails to provide any information not already of record at the time of the previous review by the NPRC since the fact that the appellant is a Philippine veteran was well-established.  VA has complied with Capellan.  

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 (West 2002) or 38 C.F.R. § 3.159 (2012).  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).  

Analysis

The appellant is seeking 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 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 critical issue involved in this case consequently is 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 the 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 the 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 she is a deserving guerrilla, having served alongside U.S. forces in World War II.  In support of her claim, she has provided statements about her service and the injuries she incurred while on service.  She has also provided VA with documentation confirming that she is a veteran of the Philippine Revolution/World War II.  She has also provided documentation reflecting that she received pension benefits from the Philippine government due to injuries she sustained during World War II.  She also submitted photocopies of numerous forms of identification, confirming that she is both a citizen and a veteran of the Philippines.  

The record demonstrates 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 January 2010, 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 United States Armed Forces.  

The Board initially notes that the Philippine service documents submitted by the appellant are not the type of service documents that suffice to establish service.  She is claiming service in the recognized guerrilla units that served the U.S. Armed Forces, but the documents themselves are not from a U.S. service department.  Under 38 C.F.R. § 3.203, to establish the requisite service, the appropriate service department in her case would be a U.S. service department and not the Philippine government.  

The appellant submitted 2 copies of a March 1994 record from the Philippine Veterans Affairs Office (PVAO).  This record reflects that the appellant was to receive a pension award due to her having a 100 percent disability evaluation resulting from World War II.  While the appellant's service in the Philippines is admirable, this document fails to reflect that she had the type of service necessary for an one-time payment from the Filipino Veterans Equity Compensation Fund.  The evidence must demonstrate that the appellant was in service of the U.S. Armed Forces.  See The American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, section 1002(d).  To establish this, said document must have been issued by a U.S. service department.  See 38 C.F.R. §3.203(a).  This document was issued by the Philippine government.  

The Veteran also submitted a document dated February 2011 from the PVAO.  This document indicates that it was issued upon the request of the appellant for Filipino Veterans Equity Compensation purposes only.  The document reflects that the appellant was a veteran of the Philippine Revolution/World War II and served with the 25th Red Lion Infantry Division, PQOG.  The appellant was categorized as a "Deserving Guerilla."  This information is not sufficient, however, as it was issued by the PVAO rather than a U.S. service department.  See 38 C.F.R. §3.203(a).  Furthermore, the document does not reflect that the appellant was in fact in the service of the U.S. Armed Forces.  Other documents from the PVAO dated August 1984 and June 2010 provide the same information.  

Finally, the appellant has submitted a number of photocopies of various forms of identification.  This includes identification cards from: the Republic of the Philippines Office of Senior Citizen Affairs; the Republic of the Philippines Social Security System; the Veterans Federation of the Philippines; and the Armed Forces & Police Savings and Loan Association, Inc.  The Board must again stress that all of these pieces of identification were issued by the Philippine government.  As such, they do not qualify as the type of record necessary to verify that the appellant had the requisite service.  Id.  Also, they too fail to provide any evidence to suggest that the appellant was in the service of the U.S. Armed Forces while serving in World War II.  

To determine the nature of the appellant's service, VA contacted the service department, which in January 2010 certified that she did not have the type of service that would qualify her for payment from the Filipino Veterans Equity Compensation Fund.  

In light of the service department's certification that the appellant did not have service with the recognized Guerrillas, and as she neither contends nor does the evidence suggest that she had the other types of service qualifying her for payment from the Filipino Veterans Equity Compensation Fund, the Board finds that the preponderance of the evidence is against the claim.  The claim is, therefore, denied.  


ORDER

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



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs