Citation Nr: 1314341	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  11-23 973	)	DATE
	)
	)

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


THE ISSUE

Eligibility for a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

C. Fleming, Counsel
INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, that denied the benefit sought on appeal.

The appellant testified before the undersigned Veterans Law Judge at a videoconference hearing in April 2013.  A transcript of that hearing has been associated with the appellant's claims file.

(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 requirements for eligibility to a one-time payment from the FVEC Fund are not met.  38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); 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

I.  Duties to Notify and Assist

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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  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 RO has explained to the appellant 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.

As set forth in more detail below, the service department has certified on multiple occasions 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, further notification is not necessary.  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 [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.  The appellant submitted multiple documents to support his contention that he had recognized service during World War II.  These documents have been reviewed by both the AOJ and the Board in connection with adjudication of the claim.  In addition, the appellant testified before the undersigned Veterans Law Judge at a hearing in April 2013.  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.  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, three requests were made to the National Personnel Records Center (NPRC) for affirmation of recognized guerrilla service for the appellant.  Each request included a copy of the documents submitted 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.

II.  Analysis

The appellant seeks entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund.  See American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).  Section 1002(d) of that Act defines a person eligible for such a 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 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).  As noted previously, the 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.  See Duro, 2 Vet. App. at 532; see also Venturella v. Gober, 10 Vet. App. 340 (1997).  Moreover, where the United States service department does not certify the claimant's alleged service in the Philippine Army, VA cannot consider his claim for benefits based on that service.  Soria, 118 F.3d at 749; see also Palor, 21 Vet. App. at 331.

The appellant contends that he served with the Philippine Commonwealth Army and an organized guerrilla unit during World War II designated as "1st Bn. 21st Inf. Regt. MMD ECLGA (Guerilla)" from September 1943 to December 1945.  He submitted an Affidavit for Philippine Army Personnel, dated in January 1946, to support his contention.  The appellant also submitted a document from the Philippine Veterans Affairs Office confirming that the appellant served with the 21st Infantry Regiment during World War II.   In addition, the appellant has submitted his Certification of Service from the General Headquarters of the Armed Forces of the Philippines, dated in August 2003, documenting that the appellant had service from September 1943 to December 1947.  His military status during that time was listed as "guerilla."  He was also awarded back pay from the Philippine Department of Finance for his service.

The record shows that the RO first determined that the appellant's name was not listed in the Reconstructed Recognized Guerilla Roster that is maintained by the Manila RO.  Next, the RO requested a determination from the pertinent United States service department as to whether the appellant has service as a recognized guerrilla.  In August 2010, July 2011, and again in April 2012, 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 U.S. Armed Forces.  Each determination was based on a review of the information submitted by the appellant regarding the dates and nature of his service during World War II, including the multiple supporting documents discussed herein, as well as the submitted affidavit.

As set forth above, the NPRC has, on three separate occasions, 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.  VA is bound by that certification.

The Board has carefully considered the documentation submitted by the appellant, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service.  A majority of these documents were not issued by the United States service department, and do not contain the necessary information to establish entitlement to the benefit sought.  Although the Board acknowledges that the appellant has submitted multiple official documents, these documents do not establish such service in behalf of the United States Armed Forces as required by law and regulation.  As such, these documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA, including the one-time payment from the Filipino Veterans Equity Compensation Fund.  

Further, in reaching this conclusion, the Board has considered the appellant's submission of a certificate of appreciation from the U.S. Army's "Freedom Team Salute" that appears to indicate that the appellant was awarded the certificate due to his "service to the Nation as a United States Army Soldier."  Although this document was generated by the United States Army and bears the photocopied signatures of the Chief of Staff and Secretary of the Army, there is no indication of the needed information concerning the length, time, and character of the appellant's claimed service.  Similarly, the appellant submitted a letter from VA stating that he had been erroneously identified as a deceased Veteran in an unrelated database.  However, this document neither identifies that the appellant had active service in the United States Armed Forces nor provides any needed information concerning the length, time and character of the appellant's claimed service.  As noted above, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant without verification from the appropriate service department only 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 the VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a).  In this case, the document in question does not satisfy the second requirement, as it does not contain the needed information as to length, time, and character of service.  

The Board has also considered the appellant's documentation concerning his naturalization as a United States citizen in 1976.  However, the decision of the United States to naturalize him does not have any bearing on whether he had service as a recognized guerilla.  While service in the U.S. Armed Forces may be a factor in the above processes, it clearly is not a pre-requisite, and the documentation submitted by the appellant confirms only that he was naturalized as a citizen of the United States in 1976, not that the decision was made based on any confirmed service in the United States Armed Forces.  In addition, the appellant has submitted a newspaper article, dated in December 1995, pertaining to a lawsuit between Filipino veterans and the U.S. Immigration and Naturalization Service, as well as a second article, which appears to be an obituary of a Philippine soldier who fought in World War II.  As these articles do not address the appellant, they are not relevant to the claim.

Finally, the appellant submitted evidence showing that he had been awarded National Service Life Insurance (NSLI) beginning in July 1946.  He contends that the fact that he was able to obtain an NSLI policy demonstrates that he had requisite service to qualify for the Filipino Veterans Equity Compensation Fund payment.  The Board notes, however, that 38 U.S.C.A. § 107(a)(1) expressly lists NSLI benefits as an exception to the prohibition of benefits to Filipino veterans with qualifying service as described in 38 U.S.C.A. § 107(a).  Thus, the fact that the appellant was approved for an NSLI policy does not confer entitlement to a one-time payment under the Filipino Veterans Equity Compensation Fund.

Again, the Board is bound by the United States service department's certification.  See, e.g., Capellan, 539 F.3d at 1376 (noting that "if the United States service department refuses to verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not the VA").

In consideration of the evidence of record, the Board finds that the appellant has not submitted any service document that establishes service as a recognized guerrilla with the U.S. Armed Forces.  The appellant has also submitted statements, and has testified before the undersigned Veterans Law Judge, indicating that he did serve with the U.S. Armed Forces during World War II.  The Board has considered the appellant's contention; however, VA is bound by the service department's certification with respect to the appellant's status as a veteran of the U.S. military.  In this case, the service department has considered the question of the appellant's military status on several occasions, including multiple reviews of the documentation of record and discussed herein.  However, each time the NPRC considered the question of the appellant's service, it returned a negative response.  In light of the service department's certification that the appellant did not have service in the Philippine Commonwealth Army or as a recognized guerrilla with the U.S. Armed Forces, the Board finds that the preponderance of the evidence is against the claim; therefore, the claim must be denied.  Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426 (1994).


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ORDER

Eligibility for a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund is denied.



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs