Citation Nr: 1314941 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-23 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The appellant contends that he served as a recognized guerrilla under the U.S. Armed Forces during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 letter decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In December 2011, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge, at the RO. A transcript of the hearing is associated with the claims file. This appeal was previously before the Board and the Board remanded the claim in January 2012 and October 2012 for additional development. The case has been returned to the Board for further appellate consideration. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the appellant's claim. 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 by way of the National Personnel Records Center (NPRC) 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 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); 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 FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist VA's duty to notify and assist claimants in substantiating their claims for VA benefits has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Palor v. Nicholson, 21 Vet. App. 325 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, in claims where it is necessary to first establish veteran status, proper VA notice must be tailored to also inform claimants of the information or evidence necessary to prove the element of veteran status, what information the claimant/appellant is responsible for providing, and what information VA will seek to obtain concerning that element. The required notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the appellant was not provided with an adequate notification letter until May 2012, after the initial adjudication of the claim in January 2010. Nevertheless, the Board finds that the appellant has not been prejudiced by the untimely nature of the May 2012 notice. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Specifically, the Board observes that as a matter of law, providing the appellant with fully-compliant notice prior to a readjudication "cures" any timing problem resulting from any deficiency in notice content or the lack of notice prior to an initial adjudication. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), citing Mayfield v. Nicholson, 444 F.3d 1328, 1328 (Fed. Cir. 2006). A statement of the case or supplemental statement of the case constitutes a "readjudication decision" that complies with all due process requirements if preceded by adequate notice. See Mayfield, 499 F.3d. In the present case, subsequent to the May 2012 letter, a supplemental statement of the case was issued in July 2012 and February 2013, thereby rectifying the timing deficiency of the May 2012 letter. Accordingly, the Board determines that the content requirements of the required notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield, 444 F.3d at 1333. Based on the above, the Board finds that further notice is not necessary prior to the Board issuing a decision. As to VA's duty to assist the appellant, there is no suggestion by the appellant or the record of any outstanding evidence. VA obtained a determination by the service department, and the appellant has submitted documents that detail his military service within the Philippine Armed Forces. 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 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 an appellant's active service after the initial service department certification. See 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, the RO sought certification of the appellant's military service in November 2009 and received a negative answer from the service department in January 2010. The RO submitted the appellant's documents to the service department with the pertinent information for reference, and received a negative determination from that agency in June 2012, and again in January 2013. There is no indication that information submitted by VA to the service department for the purposes of certifying his service was erroneous or incomplete. See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (re-certification when there is newly received relevant evidence since the negative certification). Additionally, the Board finds that the January 2012 and October 2012 remand directives have been completed. Stegall v. West, 11 Vet. App. 268 (1998). For these reasons, the Board concludes that VA has fulfilled the duty to assist the appellant in this case. Accordingly, the Board will address the merits of the claim. II. The Merits of the Appeal The appellant seeks entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. He contends that he served with an organized guerrilla unit associated with the U.S. Armed Forces. Testimony to that effect was presented during his December 2011 Board videoconference hearing. Under the American Recovery and Reinvestment Act, a new 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 Feb. 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--(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. For eligible persons who accept a payment from the Filipino Veterans Equity Compensation 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 "prohibit[s] 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." For purposes of establishing entitlement to VA 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 under 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). When the claimant does not submit evidence of service or the evidence does not meet the requirements of this section, the VA shall request verification of service from a 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); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has reached the same conclusion. See e.g. Soria v. Brown, 118 Fed. 3rd 747 -749 (Fed. Cir. 1997) (noting that "[b]ecause the United States Department of the Army refused to certify [the claimant's] alleged service in the Philippine Army, the VA properly refused to consider his claim for veterans' benefits based on that service). On a Form 21-526, received by VA in March 2009, the appellant provided his date of birth as occurring in March 1922. Under service information, he stated that from January 1, 1945 to October 30, 1945, he was a private in "Inf. "E" Co., Sqdn. A, ZMD" and from September 24, 1942 to December 31, 1944, he was a member of the Masinloc Sector, WLGF-USAFFE. VA received several other submissions at the same time as the appellant's formal application. A document from the Philippine Army notes that the appellant was a private in "E" Co., Sqd. A, ZMD and was discharged October 30, 1945. VA also received a document from the Philippine National Statistics Office indicating that the office had no way of verifying and could not issue a certified true copy of the appellant's birth record. The appellant alleged on that document that he was born in March 1925. Additionally, VA received a Philippine Application for Old Age Pension wherein the appellant listed his date of birth as occurring in March 1925 and that he served as a WWII-Guerilla. Lastly, VA received a Form 21-4138 on which the appellant stated that he was born in March 1925 and served with the WWII-Guerrilla unit from September 15, 1942 to October 30, 1945. A VA Form 21-3101 request for information was sent to the NPRC with information listing the appellant's date of birth as in March 1925, his service as Guerilla, his unit of assignment as E Co Sqdn A ZMD, and his dates of service as September 15, 1942 to October 30, 1945. A January 2010 response states that the appellant had no service as a member of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Forces. His claim was denied in a January 2010 decision. In February 2010, VA received another Form 21-4138, which stated that the appellant served with the WWII-PA-USAFFE unit, when he previously stated that he served with the WWII-Guerilla unit. Along with his March 2010 notice of disagreement (NOD), the appellant submitted several additional documents including one from the Headquarters Western Luzon Guerilla Forces which states that in 1942 the appellant swore to uphold the constitution of the United States and to become a member of the USAFFE Guerilla Forces. He also submitted an Application for Settlement of Claims of Filipino Veterans under Republic Act No. 1889. On this application, the appellant provided another date of birth occurring in March 1925 that differed from the previous date he provided as occurring in March 1925. He indicated that he was a USAFFE-Guerilla serving with "E" Co., Sqdn. "A" Masinloc Sector ZMD Magsaysay Guerilla Forces. During the December 2011 videoconference hearing before the undersigned Veterans Law Judge, the appellant testified that he is entitled to the one-time payment because he swore to be a part of a military unit and he served as a messenger. Another VA Form 21-3101 request for information was sent to the NPRC with information listing the appellant's date of birth as dates in March 1922 and March 1925, his service as Guerilla, his unit of assignment as WWII PA Guerilla/ "Inf "E" Co. Sqdn A, ZMD" Masinloc Sector, WLGF-USAFFE/ E Co., Sqdn., "A" Masinloc Sector ZMB Magsaysay Guerilla Forces. His dates of service were listed as January 1, 1945 to October 30, 1945, September 24, 1942 to December 31, 1944, and September 15, 1942 to October 30, 1945. The request for information included the documents submitted by the appellant with his March 2010 notice of disagreement, in addition to copies of statements from the appellant and a transcript of the December 2011 hearing. A June 2012 response states that there was no change warranted in the prior negative determination. A third VA Form 21-3101 request for information was sent to the NPRC with information listing the appellant's date of birth as dates in March 1922 and March 1925, his service as Guerilla, his unit of assignment as "Inf. "E" Co. Sqdn A, ZMD" / WLGF-USAFFE/ E Co., Sqdn. "A" Masinloc Sector, ZMD, Magsaysay Guerilla Forces / E. Co., Masinloc Sector, Sqdn. "A" Zambales MD. His dates of service were listed as September 24, 1942 to October 30, 1945. The request for information requested that the NPRC furnish any information or documents that verify the designation of E Co., Masinoc Sector, Sqdn. "A", Zambales MD as a semi-regular unit by the USAFFE or USFIP, to include, but not limited to, a search of US Armed Forces documents contained within the Philippine Archives Collection. A January 2013 response states that there was no change warranted in the prior negative service certification. The appellant contends that he served with an organized guerrilla unit associated with the U.S. Armed Forces. A document from the Philippine Army notes that the appellant was a private in "E" Co., Sqd. A, ZMD and was discharged October 30, 1945 and a document from Headquarters Western Luzon Guerilla Forces states that in 1942 the appellant swore to uphold the constitution of the United States and to become a member of the USAFFE Guerilla Forces. However, the appellant has not submitted any service document that establishes service as a recognized guerrilla with the U.S. Armed Forces. He has not submitted any documents that meet the first requirement of 38 C.F.R. § 3.203(a). He has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the U.S. Armed Forces. None of the other documents he has submitted are of the type acceptable as service documents establishing the requisite status. Therefore, as discussed above, VA sought service department verification as to whether the appellant served in the U.S. Armed Forces in the Philippines (and specifically whether he has had guerrilla service as alleged). In January 2010, June 2012, and January 2013, 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 U.S. Armed Forces. The June 2012 certification in particular was based on a review of the documents submitted by the appellant regarding the dates and nature of his service during World War II. This certification is binding on VA, and VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet. App. 530 (1992). It is important for the appellant to understand that the findings of the U.S. service department verifying a person's service are binding on VA for the purpose of establishing service in the U.S. Armed Forces. If a change of service department certification is what the appellant seeks, his remedy lies with the service department and not with VA. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). The Board acknowledges that the appellant has applied for pension benefits from the government based on his military service. However, a determination by the Philippine government that the appellant is entitled to benefits under a Philippine program is of no relevance to the question of eligibility for benefits under the Filipino Veterans Equity Compensation Fund. The appellant has presented no evidence that meets the requirements of 38 C.F.R. § 3.203(a), and the service department has considered the question of the appellant's military status on several occasions, including a review of the documentation of record. However, each time, a negative response was received. In light of the service department's certification that the appellant did not have service as a recognized guerrilla with the U.S. Armed Forces, the Board finds that the appeal 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). (CONTINUED ON NEXT PAGE) ORDER Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs