Citation Nr: 1314332	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  11-03 306	)	DATE
	)
	)

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



THE ISSUE

Whether the claimant has legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.



ATTORNEY FOR THE BOARD

H. Seesel, Counsel


INTRODUCTION

This appeal to the Board of Veterans' Appeals (Board/BVA) stems from a March 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  In that decision, the RO determined the claimant did not have qualifying service to be eligible for a one-time payment from the FVEC Fund.

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 National Personnel Records Center (NPRC) has certified that the claimant had no 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 claimant does not have recognized active military service to receive the one-time payment from the FVEC Fund.  38 U.S.C.A. §§ 101, 501(a), 5107 (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5, 123 Stat. 115, 200-202 (enacted February 17, 2009); 38 C.F.R. §§ 3.41, 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). 

This case relates to eligibility for a one-time payment from the FVEC fund, which is governed by the American Recovery and Reinvestment Act of 2009.  The United States Court of Appeals for Veterans Claims (Court) has held that, in cases where the claimant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated by the VCAA 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) ("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."); Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008) (noting that the duty to assist requires that new evidence submitted by a claimant in support of a request for verification of service from the service department to be submitted to the service department for review).  

In this case, although the claimant was not provided with the required notification prior to the initial adjudication of his claim, the Board finds that no prejudice has resulted.  Specifically, the RO sent the claimant a letter in November 2012 advising him that VA was seeking to verify his service.  The letter also indicated that he could speak with a Veterans Service Representative and could appoint a service organization or representative to assist him with his claim.  The claim was subsequently readjudicated in a January 2013 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case).

Moreover, the law, not the facts, are dispositive of this appeal, and the duties to notify and assist imposed by the VCAA are inapplicable to this claim.  See Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 2-2004 (March 9, 2004); see also 38 C.F.R. § 3.159 (d) (noting VA will refrain from or discontinue providing assistance in obtaining evidence when the application indicates there is no reasonable possibility that assistance would substantiate the claim, including circumstances where the claimant is ineligible for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility).  As set forth in more detail below, the service department has certified that the claimant 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 ("The Federal Circuit's 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 certification, any VCAA error is non-prejudicial, as the appellant is not entitled to benefit as a matter of law.  See Valiao v. Principi, 17 Vet. App. 229, 232 (2003); see also Palor, 21 Vet. App. at 332 ("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."). 


Law and Analysis

By way of history, during World War II, various military units of the Commonwealth of the Philippines were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941).  Current law, however, provides that the majority of those who served in the above units did not have qualifying active service for the purpose of receiving VA benefits. 38 U.S.C.A. § 107.

The particular benefit claimed in the instant case originated on February 17, 2009, when the President of the United States signed the American Recovery  and Reinvestment Act of 2009 (ARRA), authorizing the release of a one-time, lump-sum payment to eligible World War II Philippine Veterans.  See Pub. L. No. 111-5, 123 Stat. 115 (2009). 

An "eligible person" is defined 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.  See ARRA § 1002(d), Pub. L. No. 111-5.

Under 38 C.F.R. § 3.203(a), 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.  When the claimant does not submit evidence of service that meets the requirements of 38 C.F.R. § 3.203(a), VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c).

In this case, the threshold question is whether the claimant has qualifying service for VA purposes.  The claimant contends that he served with the recognized guerilla and argues that his documents reflecting service with the Philippine Army are sufficient to establish qualifying service.  He further argues that the RO has impermissibly added requirements to obtain the requested benefit by requesting verification of service through the National Personnel Records Center (NPRC).

The claimant submitted an enlistment record reflecting that he was accepted for service at Luzon Guerilla Forces in January 1945.  The final endorsement indicated he was honorably discharged in February 1947.  A March 2009 certification from the General Headquarters, Armed Forces of the Philippines, indicated that the claimant joined in January 1945 and was discharged February 1947.  

As an initial matter, the Board notes that there are two potential spellings of the claimant's last name.  In this regard, records from the Philippine government reflect a different spelling of his last name than the one he provided in his application for benefits.  The Board notes that the appellant's first and middle name, his birthday, and his parents' names are all the same.  The claimant also submitted affidavits of H.D.D. and C.D.D. who attested that they were family friends, knew that the claimant went by the last name he provided in his application, and were surprised to see his surname spelled differently in records he received from the Adjutant General.  Furthermore, the RO considered both names in processing this claim.  

The RO noted that the claimant's name was listed in the Reconstructed Recognized Guerrilla Roster (RRGR) (page #174 file #270) maintained by the RO in its requests for information sent to the NPRC in November 2009.  A December 2009 response from the NPRC indicated the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.  The RO resubmitted the request to the NPRC in January 2010 and noted the different spelling of "Dalipusa" and inquired whether the change in name warranted a change in the response.  The RO reiterated that the claimant's name appeared in the RRGR.  The NPRC responded in February 2010 that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.  In November 2012, the RO sent the Veteran's January 2011 substantive appeal and attached argument to the NPRC for re-verification.  The RO reiterated that the claimant's name appeared in the RRGR.  After reviewing this evidence, the NPRC responded in December 2012 that no change was warranted in the prior negative service certification.  

There is no question that the Veteran served with the Philippine Army.  These documents reflecting service, however, were provided by the Philippine Army and not the U.S. service department; therefore, they are inadequate to establish veteran status for purposes of VA benefits.  See 38 C.F.R. § 3.203(a).  Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that government, is not sufficient for benefits administered by VA.  See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997)(rejecting appellant's argument that it was error not to accept the Philippine Department of National Defense's certification of veteran status as proof of service.)  Rather, the Department of Veterans Affairs is bound to follow the certifications by the service departments with jurisdiction over United States military records.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).

NPRC has duly considered the claimant's application for VA benefits and reviewed the above documentation of the claimant's service, and in response, certified three times that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas.  Although the RO noted that the claimant's name was listed in the RGGR maintained by the RO in its requests for information and also forwarded the claimant's arguments from his substantive appeal, NPRC continued to certify that it had no record of the claimant serving as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. See Sarmiento v. Brown, 7 Vet. App. 80 (1994) (recertification with evidence of erroneous spelling of name); Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (noting that the duty to assist requires that new evidence submitted by a claimant in support of a request for verification of service from the service department to be submitted to the service department for review).

The claimant also submitted affidavits of H.D.D. and C.D.D., who mainly attested to the proper spelling of the claimant's name.  To the extent the claimant submitted these affidavits to substantiate his service, the Board notes that they fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service.  38 C.F.R. § 3.203(a) (VA may accept evidence, 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 that evidence is itself a document issued by the service department and VA is satisfied as to its sufficiency, authenticity, and accuracy).

The Board also notes the claimant's argument that VA impermissibly added eligibility requirements by requiring verification by the NPRC.  In support of this argument, he cited to "frequently asked questions" handouts concerning the FVEC, a February 2009 article about the FVEC that quoted Congress's findings in Section 1002, and a printout from the United States Embassy in Manila concerning the FVEC.  The claimant quoted who was eligible and specifically noted that "nothing follows" the four bullet points delineating the three classes of people eligible to claim benefits and a fourth bullet point noting that the service member must have been discharged under conditions other than dishonorable.  The claimant argues the Manila RO's letter indicating that "basic eligibility to VA benefits may be established upon verification of valid military service by the NPRC" was not binding.  

The laws specifically indicate that, when the claimant does not submit evidence of service that meets the requirements of 38 C.F.R. § 3.203(a), VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c).  In the case of Philippine veterans, verification is conducted through NPRC.  The Board notes that the NPRC is part of the United States National Archives and Records Administration that receives and stores records of various types of persons who served in the Armed Forces.  The Board takes judicial notice of the fact that NPRC also contains the Philippine Archives Collection, which focuses "on the individual men and women who served in military or civilian capacities or in guerrilla units in the Philippines during the period of Southwest Pacific Area control."  See http://www.archives.gov/research/military/ww2/philippine/; see also Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (the Board "may take judicial notice of facts not subject to reasonable dispute." (citing Fed. R. Evid. 201 (b)).  The website further explains that NPRC received the Philippine Army and Guerrilla Records files from the U.S. Army Reserve Personnel Command.  Significantly, the 7th Circuit permitted judicial notice that NPRC and VA do in fact maintain medical records of military personnel and noted that the NPRC website explained it was the "repository of millions of military personnel, health and medical records of discharged and deceased veterans of all services during the 20th century."  Denius v. Dunlap, 330 F.3d 919, 926 (7th Cir. 2003).

As NPRC is the repository for the service department records, the Board is not free to ignore the certification of the NPRC, as this verification is binding on VA.  The agency has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet App. 530, 532 (1992); see Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department refuses to verify the claimed service, the applicant's only recourse lies within the service department, not with VA).  Furthermore, the claimant in this case has failed to submit any other evidence that would serve as proof of service or suggest that any other facility would have records proving such service.  VA's duty is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role.  Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992); see also Griffin v. Shinseki, 475 Fed. Appx. 328, 330 (Fed.Cir. 2012)(nonprecedential)(affirming the Court's finding that VA met its duty to assist by contacting the NPRC for records and noting that "to conclude that the VA is required to make virtually unlimited requests to various agencies to obtain records the existence of which is open to question would vitiate section 5103A(a)(2) from the statute."); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (finding that a nonprecedential decision of the Court, while not binding, "may be cited or relied upon, however, for any persuasiveness or reasoning it contains").  Accordingly, as NPRC has certified several times that the claimant had no qualifying service, the claimant may not be considered a veteran for the purpose of establishing entitlement to the one-time payment from the FVEC Fund.  


ORDER

The claim of legal entitlement to the one-time payment from the FVEC Fund is denied.



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs