Citation Nr: 1315138 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 10-31 936A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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 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); 38 C.F.R. § 3.203 (2012); American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Notice must generally be provided before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the appellant was not provided with a notification letter until September 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 September 2012 notice. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the RO readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the RO on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). 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 a Philippine Army Personnel affidavit to support his contention that he had recognized service during World War II and it has been reviewed by both the RO and the Board in connection with adjudication of the claim. He also submitted various documents from the Armed Forces of the Philippines and the Philippine Veterans Affairs Office, which have also been reviewed. 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. Id., 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, four 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 affidavit and subsequent additional information submitted by the appellant. Thus, the Board finds that VA has complied with its duty to assist the appellant. 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) (2012). 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 United States 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 Luzon Guerilla Army Forces from February 1943 to May 1946. He submitted an Affidavit for Philippine Army Personnel, dated in May 1946, to support his contention. The affidavit indicates that the Veteran served as a civilian guerilla in "H Co. 3rd Bn. 2nd Prov Inf Reg't." The appellant also submitted various documents from the Armed Forces of the Philippines and the Philippine Veterans Affairs Office to support his contention of recognized guerilla 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 (via the NPRC) as to whether the appellant had service as a recognized guerrilla on four occasions. In September 2009, June 2010, November 2012 and January 2013, 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 United States 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 and his supporting documents. In consideration of the evidence of record, the appellant has not submitted any service document that establishes service as a recognized guerrilla with the United States Armed Forces. The Board has considered the appellant's contention; however, VA is bound only by the service department's certification with respect to the appellant's status as a veteran of the United States military. In this case, 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 in the Philippine Commonwealth Army or as a recognized guerrilla with the United States Armed Forces, the Board finds that the preponderance of the evidence is against the claim; therefore, the claim must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs