Citation Nr: 1315783 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 11-22 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the Appellant has legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) fund. ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c) (2012), the appeal has been advanced on the Board's docket. This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision in May 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The National Personnel Records Center has certified and re-certified that the Appellant 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 Appellant does not have recognized active military service as required to establish eligibility for Filipino Veterans Equity Compensation Fund benefits. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2010); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2011). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The VCAA does not apply in this case, because there is no reasonable possibility that any further assistance would aid the Appellant in substantiating the claim. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (The U.S. Court of Appeals for Veterans Claims held that the VCAA does not apply to a claim if there has been factual development and there is no reasonable possibility that any further assistance would aid the Appellant in substantiating the claim.). REASONS AND BASES FOR FINDING AND CONCLUSION Governing Law The Appellant seeks a one-time payment from the Filipino Veterans Equity Compensation Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009) (to be codified in Title 38 of the United States Code: Veterans' Benefits). 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. The Secretary of VA is to administer the fund consistent with applicable provisions of the Title 38 of the United States Code. Under Section 1002, an eligible person is any person: (1) who served 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 (2) any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ); and (3) any eligible person was discharged or released from service under conditions other than dishonorable. See 38 C.F.R. § 3.40 (eligibility for VA benefits for certain Philippine service). For the purpose of establishing evidence of service, the Department of Veterans Affairs 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 the Department of Veterans Affairs 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 submitted does not meet the stated requirements, the Department of Veterans Affairs will request verification of service from the service department. 38 C.F.R. § 3.203(c). 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. Duro v. Derwinski, 2 Vet. App. 530 (1992). Facts The Appellant claims that he is entitled to a one-time payment from the FVEC fund. He essentially alleges that he served with the Philippine Commonwealth Army, USAFFE (U.S. Armed Forces, Far East), from September 1941 to May 1942 and/or from October 1941 to March 1946. He also maintains that he was a prisoner of war (POW) from May 1942 to August 1942. A February 1946 Affidavit for Philippine Army Personnel listed the Appellant's organization as the Headquarters and Base Service Squadron, A.S.G., Philippine Army. The Appellant reported that he volunteered for active duty at Zablan Field in September 1941 and that he was inducted into the USAFFE in October 1941. He reported that he was assigned to the Philippine Army Air Corps from October 1941 to January 1942. The Appellant indicated that he was assigned to the 14th Engineer Corps in January 1942, and that he was assigned to the 31st Infantry from January 1942 to February 1942. The Appellant stated that he was assigned to the 4th U.S. Marine Corps from February 1942 to May 1942. He reported that he was a POW from May 1942 to August 1942, and that he was released and arrived home in September 1942. He maintained that he was a civilian and unemployed from September 1942 to August 1945, and that he was processed in August 1945. A January 1948 affidavit from A. Armas, M.D., noted that he treated the Appellant for long standing malaria in October 1942, which he might have obtained in Bataan, Philippines. Dr. Armas reported that he treated the Appellant for malaria until December 1943, but that the Appellant sometimes came to him for treatment for malaria after that time. A July 1948 lay affidavit from three acquaintances of the Appellant, including one acquaintance who stated that he was a municipal mayor during the Japanese occupation, and another acquaintance who stated that he was a member of a municipal police force, indicated that they knew the Appellant very well. They stated that the Appellant was released as a POW from a concentration camp in Tarlac, Philippines. They reported that the Appellant reported to the office of the municipal mayor and the chief of police once a week from October 1942 to November 1944. A February 1973 statement from, apparently, an Assistant Adjutant General in the Philippine Army, reported that the Appellant volunteered for active duty in September 1941, and that he was inducted into the USAFEE in October 1941. The Assistant Adjutant General indicated that the Appellant was assigned to the Philippine Army Air Corps (F-23), that he was paid as a private from December 1941 to August 1942, and that he was in no casualty status from August 1942 to January 1946. It was noted that the Appellant was also paid as a private and private first class from August 1945 to January 1946. The Assistant Adjutant General stated that the Appellant was processed in August 1945, and that he reverted to inactive status in March 1946. An April 1982 statement from the Republic of the Philippines, Ministry of National Defense, Philippine Veterans Affairs Office, noted that the Appellant was a veteran of World War II and the Philippine Revolution and that he served with the Philippine Army Air Corps. A January 1983 statement from, apparently, an Assistant Adjutant General in the Philippine Army reported that the Appellant had USAFFE service from October 1941 to August 1945, and that he was assigned to the Philippine Army Air Corps (F-23). It was noted that the Appellant was also a POW from May 1942 to August 1942. A report of restricted information, with a date stamp in April 1983, from a major general in the Philippine Army listed the Appellant's name as serving with the 1st Air Service Group and the 1st Air Engineer Squadron. A February 1987 certification from the Armed Forces of the Philippines, General Headquarters, Ministry of National Defense, noted that the Appellant was a member of the Commonwealth Army of the Philippines in the Service of USAFFE/Guerilla. It was reported that the Appellant was paid in arrears as a private from December 1942 to August 1942, and that he was in no casualty status from August 1942 to August 1945. The certification related that the Appellant received current pay as a private from August 1945 to September 1945, as a private first class from October 1945 to November 1945, and as a corporal from December 1945 to January 1946. An April 1987 statement from, apparently, an Assistant Adjutant General in the Philippine Army reported the Appellant had USAFFE service. The Assistant Adjutant General noted that the Veteran volunteered for USAFFE service in September 1941 and that he was, apparently, inducted in October 1941. It was noted that the Appellant was assigned to the Philippine Army Air Corps (F-23). The Assistant Adjutant General also reported that the Appellant was a POW from May 1942 to August 1942. The Assistant Adjutant General indicated that the Appellant was paid in arrears as a private from December 1941 to August 1942, that he was in no casualty status from August 1942 to August 1945, and that he was paid current pay as a private from August 1945 to September 1945. It was noted that the Appellant was paid as private first class from October 1945 to November 1945, and as a corporal from December 1945 to January 1946. An April 1987 certification from the Armed Forces of the Philippines, General Headquarters, Ministry of National Defense, indicated that the Appellant volunteered for active duty in September 1941 and that he was inducted in October 1941. It was noted that the Appellant served with the Philippine Army Air Corps (F-23), and that he was a POW from May 1942 to August 1942. The certification indicated that the Appellant reverted in March 1946. There was a notation that the Appellant's military status was USAFFE. A March 1991 statement from the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office, noted that the Appellant was a veteran of World War II and the Philippine Revolution and that he served with the Philippine Army Air Corps. A June 2000 survey form from the Philippine Veterans Affairs Office indicated that the Appellant was a pensioner and that he was born on August [redacted], 1916. His spouse's name was listed and it was noted that she was deceased. A January 2001 lay statement from a post commander of a Filipino-American Post of the Veterans of Foreign Wars of the United States, indicated that the Appellant was very active in their organization and that he had been a junior vice-commander for three consecutive years. The Appellant stated that he certified that the Appellant was a veteran of World War II and that he was an ex-POW of the Japanese Imperial Army in Tarlac, Philippines. A June 2001 statement from N. J. Tuliao, M.D., indicated that the Appellant was a World War II veteran and an ex-POW. Dr. Tuliao stated that the Appellant had been a patient since September 1995 and that, as a POW, he suffered from malnutrition, dehydration, sleep deprivation, dysentery, and malaria, etc. He stated that the Appellant currently had disorders, including chronic obstructive pulmonary disease; hypertension; osteoarthritis; degenerative disc disease of the lumbar spine; peripheral vascular disease with intermittent claudication of the legs; chronic sinusitis; sensorineural hearing loss, as well as chronic otitis media and tinnitus; recurrent gastritis; hyperlipidemia; and benign prostatic hypertrophy with prostatism and recurrent urinary tract infections. In February 2002, pursuant to a prior claim as to whether the Appellant had legal entitlement to VA benefits, the RO requested verification of the Appellant's service from the National Personnel Records Center (NPRC). The RO reported that the Appellant alleged that he had USAFFE service and that he served with the Headquarters and Base Service Squadron A.S.G. His date of birth was listed as August [redacted], 1916 and his place of birth was reported to be Manaoag, Pangasinan, Philippines. The Veteran's father's name, mother's name, and spouse's name, were all listed as unknown. In a June 2002 response to the February 2002 request for verification of the Appellant's service, 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. A report from a post of the Veterans of Foreign Wars of the United States, received in September 2002, indicated that the Appellant enlisted in the Philippine Army Air Corps in September 1941 and that he was inducted into the USAFFE in October 1941. It was reported that the Appellant served in the Military Police Air Corps; the 14th Engineer Corps; the 31st Infantry; and the 4th U.S. Marine Corps. The report indicated that the Appellant was a POW from May 1942 to August 1942, and that he reverted to inactive military status in March 1965. A January 2004 survey form from the Philippine Veterans Affairs Office indicated that the Appellant was a pensioner and that he was born on August [redacted], 1916. His spouse name was listed and it was noted that she was deceased. A July 2004 lay affidavit from two friends of the Appellant indicated that he volunteered for active duty in September 1941 and that he was inducted into the USAFFE in October 1941. They reported that the Appellant was connected with the Philippine Army Air Corps from October 1941 to January 1941, that he was assigned to the 14th Engineer Corps in January 1942, and that he was assigned to the 31st Infantry from February 1942 to May 1942. They further stated that the Appellant was a POW form may 1942 to August 1942, and that he safely arrived home in September 1942. An undated certificate of appreciation from the Disabled American Veterans noted that the Appellant served in the Armed Forces of the United States of American during a time of conflict. In March 2009, the Appellant filed his claim for legal entitlement to a one-time payment from the FVEC fund. He reported that he served with the Philippine Commonwealth Army, USAFFE, from September 1941 to may 1942. He stated that served with the Philippine Army Air Corps. The Appellant listed the names of his mother and father. He reported that his spouse was deceased and he did not list her name. The Appellant indicated that his date of birth was August [redacted], 1916 and that his place of birth was Manaoag, Pangasinan, Philippines. In August 2010, the RO requested verification of the Appellant's service from the NPRC. The RO reported that the Appellant alleged that he had USAFFE service from September 1941 to May 1942, and that he served with the Headquarters and Base Squadron, A.S.G., and the Philippine Army Air Corps. His date of birth was listed as August [redacted], 1916, and his place of birth was listed as Manaoag, Pangasinan, Philippines. The names of the Appellant's father and mother, but not his spouse, were listed. The RO reported that the Appellant served under the name of Ceferino G. Carino, but he might possibly be listed as Ceferino F. Carino. It was noted that the Appellant's name was not listed in the Reconstructed Recognized Guerilla Roster maintained at the RO. In a September 2010 response to the August 2010 request for verification of the Appellant's service, 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. In a report from a post of the Veterans of Foreign Wars of the United States, received in September 2010, indicated that the Appellant enlisted in the Philippine Army Air Corps in September 1941 and that he was inducted into the USAFFE in October 1941. It was reported that the Appellant served in the Military Police Air Corps; the 14th Engineer Corps; the 31st Infantry; and the 4th U.S. Marine Corps. The report indicated that the Appellant was a POW from May 1942 to August 1942, and that he reverted to inactive military status in March 1965. In November 2010, in a report for reconstruction of missing service records, apparently from the Veterans of Foreign Wars of the United States, it was noted that the Appellant enlisted in the Philippine Army Air Corps in September 1941 at Zablan Field and that he was inducted into the USAFFE in October 1941. It was reported that the Appellant was assigned to the Philippine Army Air Corps from October 1941 to January 1942 and that he was attached to the 14th Engineer Corps as a rifleman in January 1942. The report indicated that the Appellant was attached to the 31st Infantry as a rifleman from January 1942 to February 1942, and that he was assigned to the 4th U.S. Marine Corps from February 1942 to May 1942. The report stated that the Appellant was a POW from May 1942 to August 1942. In March 2011, the RO requested verification of the Appellant's service from the NPRC. The RO reported that the Appellant alleged that he had USAFFE service from September 1941 to May 1942. It was noted that the Appellant reported that he served with Air Corps at Zablan Field; the Philippine Army Air Corps in Bagac, Bataan, Philippines; the 14th Engineer Corps as a rifleman; the 31st Infantry as a rifleman in Bataan, Philippines, and the 14th Engineer Corps in Bataan, Philippines. His date of birth was listed as August [redacted], 1916, and his place of birth was listed as Manaoag, Pangasinan, Philippines. The names of the Appellant's father and mother, but not his spouse, were listed. The RO reported that the Appellant served under the name of Ceferino G. Carino, but that he might possibly be listed as Ceferino F. Carino. It was noted that the Appellant's name was not listed in the Reconstructed Recognized Guerilla Roster maintained at the RO. In an April 2011 response to the March 2011 request for verification of the Appellant's service, 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. In a July 2011 Questionnaire about Military Service, the Appellant reported that he began his active duty in September 1941 and that he was released from active duty in March 1946. He stated that he enlisted at Zablan Field, Quezon City, Philippines and that his type of military assignment was with the 4th Air Base Maintenance Squadron. He maintained that his last military organization was at Neilson Airfield. The Appellant reported that his final rank was as a corporal. He also listed his date of birth as August [redacted], 1916 and provided the names of his mother and father. In an August 2011 Questionnaire about Military Service, the Appellant reported that he began his active duty in September 1941 and that he was released from active duty in March 1946. He stated that he enlisted at Zablan Field, Quezon City, Philippines and that his type of military assignment was in maintenance. He related that his last military organization was at Neilson Airfield. The Appellant reported that his final rank was as a corporal. He also listed his date of birth as August [redacted], 1916 and provided the names of his mother and father. In Questionnaires About Military Service, received in October 2011 and November 2011, respectively, the Appellant reported essentially the same information as in the prior August 2011 Questionnaire About Military Service. In August 2012, the RO requested verification of the Appellant's service from the NPRC. The RO reported that the Appellant alleged that he had USAFFE service from September 1941 to May 1942 and/or from October 1941 to March 1946. It was noted that the Appellant reported that he served with Air Corps at Zablan Field; the Philippine Army Air Corps in Bagac, Bataan, Philippines; the 14th Engineer Corps as a rifleman; the 31st Infantry as a rifleman in Bataan, Philippines, and the 14th Engineer Corps in Bataan, Philippines. His date of birth was listed as August [redacted], 1916, and his place of birth was listed as Manaoag, Pangasinan, Philippines. The names of the Appellant's father and mother, but not his spouse, were listed. The RO reported that the Appellant served under the name of Ceferino G. Carino, but that he might possibly be listed as Ceferino F. Carino. It was noted that the Appellant's name was not listed in the Reconstructed Recognized Guerilla Roster maintained at the RO. In October 2012, the RO sent a follow-up request for verification of the Appellant's service from the NPRC with the same information as with the August 2012 request (noted above). In a November 2012 response to the August 2012 request for verification of the Appellant's service, the NPRC indicated that no change was warranted in the prior negative service certifications. In another November 2012 response to the October 2012 follow-up request for verification of the Appellant's service, the NPRC again indicated that no change was warranted in the prior negative service certifications. Analysis The Appellant does not legally qualify for a one-time payment from the FVEC fund. The NPRC has specifically certified, and recertified on numerous occasions, 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 February 1946 Affidavit for Philippine Army Personnel; the February 1973 statement from, apparently, an Assistant Adjutant General in the Philippine Army; the April 1982 statement from the Republic of the Philippines, Ministry of National Defense, Philippine Veterans Affairs Office; the January 1983 statement from, apparently, an Assistant Adjutant General in the Philippine Army; the report of restricted information, with a date stamp in April 1983, from a major general in the Philippine Army; the February 1987 certification from the Armed Forces of the Philippines, General Headquarters, Ministry of National Defense; the April 1987 statement from, apparently, an Assistant Adjutant General in the Philippine Army; the April 1987 certification from the Armed Forces of the Philippines, General Headquarters, Ministry of National Defense; and the March 1991 statement from the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office, all fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as the certifications are not official documents of the appropriate United States service department. The documents, therefore, are not acceptable as verification of the Appellant's service for the purpose of receiving VA benefits. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Additionally, as the other documents submitted by the Appellant, such as reports from the Veterans of Foreign Wars of the United States and Questionnaires About Military Service, as well as lay statements, lay affidavits, and private physician statements, were not issued by a U.S. service department, the documents fail to satisfy the requirements of 38 C.F.R. § 3.203(a) as acceptable proof of service, and the documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including the one-time payment from the Filipino Veterans Equity Compensation Fund. As explained, qualifying military service has not been certified through a United States service department. As the Appellant has provided no further information or evidence that would warrant a request for recertification from a U.S. the service department, no further development is needed. 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) (recertification when there is newly received relevant evidence since the negative certification). As the U.S. service department, through the NPRC, certified and re-certified, that the Appellant did not serve as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the United State Armed Forces, the finding is binding on VA for the purpose of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992). As the Appellant has not submitted acceptable evidence of service under 38 C.F.R. § 3.203(a), and as a U.S. service department has not verified the Appellant's service under 38 C.F.R. § 3.230(c), the preponderance of the evidence is against the claim that the Appellant served in the organized military forces of the Government of the Commonwealth of the Philippines, including service in the guerrilla forces, in the service of U.S. Armed Forces. The Board therefore concludes that the Appellant is not legally eligible for the Filipino Veterans Equity Compensation Fund benefit under the American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5. As the law is dispositive, the claim must be denied because of the lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The Appellant is not eligible for benefits from the Filipino Veterans Equity Compensation Fund, and the appeal is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs