Citation Nr: 1314476 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 11-03 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant meets the basic eligibility requirements for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The appellant contends that he had recognized guerilla service and service in the Commonwealth Army of the Philippines in the service of the United States Armed Forces of the Far East (U.S.A.F.F.E.). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision by 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 National Personnel Records Center (NPRC) has verified that the appellant did not have 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 service requirements for eligibility to a one-time payment from the FVEC Fund have not been 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 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012), and implemented at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 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) (as 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). 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 a notification letter, dated in October 2012, the RO explained what information and evidence is necessary to prove the element of veteran status. The October 2012 letter also complied with 38 U.S.C.A. § 5103(a) as to his claim of legal entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. In any event, any VCAA notification 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 (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."). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. The Board therefore finds no prejudice toward the appellant in proceeding with the adjudication of his claim. Filipino Veterans Equity Compensation (FVEC) Fund The appellant asserts that he had recognized guerilla service in the Commonwealth Army of the Philippines, and is therefore an eligible claimant. Specifically, he asserts that he was inducted into the guerrilla service on December 8, 1941, and discharged on June 30, 1945. The appellant has submitted two documents in support of his claim: an "Affidavit for Philippine Army Personnel" (APAP) dated in April 1946, indicates that he entered service ("Sector #17 Cebu Central Sector CGF") in September 1942, and that he was a civilian between March 1943 and September 1943, followed by induction into I Company, 3rd Battalion, 85th Infantry (which he has stated was his old unit, apparently renamed), in September 1943, until discharge on July 31, 1945 The appellant has also submitted a certification of the Armed Forces of the Philippines Office of the Adjutant General, dated in September 2010, which contains similar information to that in the APAP. For eligible persons who accept a payment from the FVEC 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 prohibits 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 (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. Under 38 C.F.R. § 3.203(a), VA may accept evidence of service submitted by a claimant, such as a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate U.S. service department under the following conditions: (1) the evidence is a document issued by the United States 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). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012); Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service. 38 C.F.R. § 3.203; Soria. In February 2009, the appellant filed a timely claim and contended that he was eligible for a one-time payment from the FVEC Fund as a result of his service, based on claimed service with I Company of the 85th Infantry (GF), beginning December 8, 1941, with discharge on June 30, 1945. In May 2010, the RO denied the claim for lack of recognized service. The appellant has appealed. The RO has attempted to verify the appellant's claimed service after providing the service department with the supporting documentation which the appellant had submitted. This was done on four occasions, using three variations of his name. See National Personnel Records Center responses (VA Forms 21-3101 (JF)), dated in December 2009, February 2010, and January 2013 (two responses). However, in each case, the NPRC stated 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. In summary, certifications from the NPRC dated in December 2009, February 2010, and January 2013 (two responses), show 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 NPRC made those certifications after considering the information provided by the appellant, to include a service number that he provided, and several variations of his name. See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008). The appellant has not submitted 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). The documentation submitted by the appellant fails 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. 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 compensation from the FVEC Fund. The NPRC has certified that the appellant had no qualifying NPRC service. 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 the 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. See 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 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. Veteran status is a prerequisite to entitlement to payment from the FVEC fund. As such, entitlement to a one-time payment from the FVEC Fund is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs