Citation Nr: 1315920	
Decision Date: 05/15/13    Archive Date: 05/15/13

DOCKET NO.  10-37 810	)	DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.


ATTORNEY FOR THE BOARD

C. Kedem, Counsel


INTRODUCTION

This appeal comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision by which the RO denied the appellant's claim for one-time payment from the FVEC Fund. 

In reviewing this case the Board has not only reviewed the appellant's physical claims file, but also the appellant's file on the "Virtual VA," and there is no indication that additional evidence has been received since the last supplemental statement of the case. 

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 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 U.S. Armed Forces during World War II.


CONCLUSION OF LAW


The appellant did not have the requisite service to entitle him to payment from the FVEC Fund.  38 U.S.C.A. §§ 101, 5107 (West 2002); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In February 2009, the appellant submitted an application for one-time payment from the FVEC Fund.  He reported serving with "A" Complained of 1st Bn, 101st Inf from December 18, 1941 to July 3, 1945.  

Upon receipt of the appellant's application, the RO contacted the service department and requested verification of the appellant's reported military service.  In its request, the RO included the information provided by the appellant.  The Manila RO added that the appellant was not listed in the Reconstructed Recognized Guerilla Roster.  In August 2009, the National Personnel Records Center (NPRC) responded that the appellant had 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.

In September 2009, the RO denied the appellant's claim on the basis that the service department had certified that he did not have the requisite military service to establish eligibility therefore.

The appellant appealed the RO's determination, arguing that he was a "true member" of the United States Armed Forces in the Far East (USAFFE).  He also stated that he had been a prisoner of war.  The Veteran provided a letter from the Philippine Veterans Affairs Office indicating that he was approved for an old age pension.  He provided a dog tag that did not indicate any specific type of service.  He provided a certification from the Philippine Ministry of National Defense dated in January 1987 reflecting USAFFE service from December 18, 1941 to July 3, 1945.  The appellant provided a document wherein his name was listed as a member of the 41st Infantry of the Philippine Army.  The appellant submitted other documentation not indicating any particular type of service during World War II as well as an affidavit from a fellow soldier attesting to his service with the USAFFE.  The appellant himself submitted such an affidavit.  

In November 2012, the NPRC indicated that no change was warranted in the prior negative service certification.

The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War.  During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were called into the service of the United States Armed Forces of the Far East by President Franklin D. Roosevelt.  See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941).  

Current law, however, provides that the service of certain Filipino veterans does not entitle them to receive full benefits administered by the Secretary U.S. Department of Veterans Affairs.  See generally 38 U.S.C.A. § 107.

On February 17, 2009, the President signed the American Recovery and Reinvestment Act, intended for "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization."  See Pub. L. No. 111-5, 123 Stat. 115 (2009).  The legislation included a provision for the creation of the Filipino Veterans Equity Compensation Fund, providing one time payments to "eligible persons" in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).

An "eligible person" is defined as any person 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 who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538).  Additionally, the person must have been discharged or released from such service under conditions other than dishonorable.  Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009).

The Act further directs the Secretary to "administer the provisions of this section in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and shall apply the definitions in section 101 of such title in the administration of such provisions, except to the extent otherwise provided in this section."  Id.  

The Secretary is authorized by statute to prescribe "regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits" under the laws administered by VA." 38 U.S.C. § 501(a)(1).  Pursuant to that authority, the Secretary has prescribed regulatory provisions governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. 

That regulation provides that for the purpose of establishing entitlement to 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 the VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a).

With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for ninety days for a line of duty disability.  38 C.F.R. § 3.203(b).  When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, the VA shall request verification of service from the 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).  The United States 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.").

As set forth above, the 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.  VA is bound by that certification.

The Board has carefully considered the argument 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.  The appellant has not submitted any documents from the service department that may 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 FVEC Fund.  Moreover, the Board notes that the NPRC has considered the appellant's claim, but determined 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.  Again, the Board is bound by this certification.  See e.g. Capellan v. Peake, 539 F.3d 1373, 1376 (Fed. Cir. 2008) (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"). 

As the service department has certified that the appellant did not have the requisite service to qualify him for payment from the FVEC Fund, 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).

Veterans Claims Assistance Act of 2000 (VCAA)

Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a)(1) (West 2002 & Supp. 2012); 
38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The 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 by the VCAA 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) ("Since veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of VCAA 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 hid claim, the Board finds that no prejudice has resulted.  In the September 2012 notification letter, the RO indicated that it was seeking verification from the NPRC and that such was necessary.  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 FVEC Fund.

After affording the appellant the opportunity to submit additional evidence and argument, the RO reconsidered his claim in the January 2013 supplemental statement of the case.  See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); Medrano v. Nicholson, 21 Vet. App. 165 (2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a supplemental statement of the case, is sufficient to cure a timing defect).

Moreover, to the extent that the notification provided to the appellant did not include specific information regarding veteran status, the Board finds that such error is not prejudicial.  As set forth in more detail below, the service department 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 during World War II. VA is bound by this certification. See Soria, 118 F.3d at 749; Palor, 21 Vet. App. at 332 ("The Federal Circuit's 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, 2 Vet. App. at 532. 

In light of the binding certifications, 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 her 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, she was not prejudiced by the section 5103(a) notice error.").

Under VCAA, VA also has a duty to assist claimants in the development of a claim.  This includes assisting the claimant in procuring service medical records and other relevant treatment records and providing a VA examination when necessary.  
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

A review of the record indicates that all necessary evidence relative to this claim has been obtained and associated with the claims file.  As set forth in more detail below, the service department 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 U.S. Armed Forces during World War II.

For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided.  No reasonable possibility exists that any additional assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The Board further notes that the Court has held that VCAA is not applicable to matters in which the law, and not the evidence, is dispositive.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  As set forth in more detail above, the appellant's appeal must be denied as a matter of law.

ORDER

Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied.

____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs