Citation Nr: 1316108	
Decision Date: 05/16/13    Archive Date: 05/29/13

DOCKET NO.  10-33 082	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

A.G. Alderman, Counsel


INTRODUCTION

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).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision of the Department of Veterans Affairs regional office (RO) in Manila, Republic of the Philippines, that determined that the appellant did not have qualifying service to be eligible for the one-time payment from the Filipino Veterans Equity Compensation Fund.


FINDING OF FACT

The National Personnel Records Center has 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.


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 FINDING AND CONCLUSION

The Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  

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) ("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 September 2012, the RO sent the appellant a letter notifying him of the evidence necessary to substantiate claims concerning a one-time payment from the Filipino Veterans Equity Compensation Fund under the American Recovery and Reinvestment Act of 2009.  The letter also informed the appellant of the information and evidence VA would seek to provide.

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 the February 2010 decision letter, the RO explained that verification of military service was the responsibility of the National Personnel Records Center (NPRC) and its findings were binding on VA.  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 Filipino Veterans Equity Compensation Fund.  Further, the RO readjudicated his claim via a statement of the case (SOC) issued in June 2010 and a supplemental statement of the case (SSOC) issued in December 2012.  As such, there is no prejudice to the appellant concerning the timing of these notice elements.  See 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 SOC or SSOC, is sufficient to cure a timing defect).  Further, in light of the binding certification, any 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. 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").

As to VA's duty to assist the appellant, there is no suggestion by the appellant or the record of any outstanding evidence.  The instant case involves the legal issue of whether the appellant's service qualifies for payment from a fund established by Congress.  The RO has obtained relevant information from the service department and the appellant has submitted records pertaining to his service.

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 submitted the appellant's documents to NPRC for verification of service in October 2009, April 2010, August 2010, September 2012, and November 2012 and last received a determination from that agency in January 2013.  All requests were submitted based on updated or corrected information provided by the appellant.  All requests resulted in a finding that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces.  VA has complied with Capellan.

Briefly, the RO issued the most recent SSOC in December 2012.  The most recent response from the NPRC was received in January 2013.  Under 38 C.F.R. § 19.31 (2012), a SSOC must be furnished to an appellant when additional pertinent evidence is received after a SOC or the most recent SSOC has been issued.  See also 38 U.S.C.A. § 7105 (West 2002).  In this case, because NPRC's response in January 2013 continued to be negative, the Board finds that the January 2013 response is cumulative of the evidence considered at the time the RO issued the December 2012 SSOC.  Therefore, an updated SSOC is not required prior to the Board's adjudication of this matter.

In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A (West 2002), or 38 C.F.R. § 3.159 (2012).  Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of the claim.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

Law and Regulations

Under the American Recovery and Reinvestment Act, a 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 February 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.

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 critical issue involved in this case consequently is 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).

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 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).

Analysis

In his initial claim, the appellant said he served from August 1943 to June 1945 with the Eastern Luzon Guerilla Area Engr Service Bn. Bataan Military Dist.  In support of his claim, the appellant submitted a service document generated by a Philippine government source, namely a Form 23 completed by the appellant in July 1947, indicating that he served with QM Co BMD ECLGA; Grla BMD, ECLGA; "A" Co Engr Sv Bn; Atchd 113th Engr Cbt Bn; Atchd to 151st Inf; and Atchd 27th Engr 6th Div.  The Form 23 indicates that the appellant served from August 1943 to June 1945 and that he was a "Civilian Guerilla", as distinguished from the other choice of "USAFFE-Guerilla."

The appellant has also submitted a Certification from the General Headquarters of the Armed Forces of the Philippines, Office of the Adjutant General.  This document indicates that the appellant was a Recognized Guerilla with the QM Co BMD ECLGA and served from August 1943 to June 1945.  The appellant also submitted photocopies of various identification and membership cards, and a list of persons identified as old age pensioners.  He also submitted bank documents, including a check written to him from the Philippine Veterans Affairs Office.

The record shows that in October 2009, the RO requested a determination from the NPRC as to whether the appellant had service as a Recognized Guerilla with the Eastern Luzon Guerilla Area Engr Service Bn. Bataan Military Dist.  In November 2009, 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 U.S. Armed Forces.

In April 2010, the RO asked the NPRC to verify whether the appellant had service as a Recognized Guerilla with the BMD, ECLGA.  In May 2010, the NPRC continued the November 2009 finding.

In his substantive appeal, the appellant said his mother's first and middle names were inaccurate on the inquiries sent to NPRC for verification of service.  In August 2010, the RO asked NPRC to verify service using the alternate spelling of his mother's first name and to search unit 113th Engr Combat Bn.  The middle name was not corrected.  NPRC continued to find 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.

In November 2012, the RO sent another request to NPRC asking whether the appellant had service as a Recognized Guerilla with the QM Co BMD ECLGA; Engr Serv Bn Bataan MD ECLGA; Grla BMD, ECLGA; "A" Co Engr Sv Bn; Atchd 113th Engr Cbt Bn; Atchd to 151st Inf; and Atchd 27th Engr 6th Div.  The RO noted the alternate spellings of the appellant's mother's first name and omitted the middle name.  In January 2013, the NPRC indicated that no change was warranted in the prior negative service certification.

The Board has reviewed all of the evidence but finds that the Philippine service document, Form 23, is not sufficient to establish the appellant's service because the document is not from a U.S. service department.  38 C.F.R. § 3.20.  In any event, the Philippine document does not support his claim.  At most it notes that he served in a guerilla unit, and in fact specifies that he served in a guerilla unit other than one associated with the USAFFE.  Similarly, because the Certification from the General Headquarters of the Armed Forces of the Philippines, Office of the Adjutant General is not from an appropriate U. S. service department, the document is not sufficient to verify service for VA purposes.  Further, the Certification indicates that the appellant was a Recognized Guerilla but does not indicate that he was with a unit associated with USAFE.  Therefore, the Certification document does not support his claim.

Regarding the check from the Philippine Veterans Affairs Office showing the appellant's receipt of monies from the Philippine government, the decision by a foreign government to offer monies to a person does not establish that the person is a "Veteran" for VA purposes.

To determine the nature of the appellant's service, VA contacted the service department, which in January 2013 certified that the appellant did not have the type of service that would qualify him for payment from the Filipino Veterans Equity Compensation Fund.  As the service department has certified that the appellant did not have the requisite service to qualify him for payment from the Filipino Veterans Equity Compensation 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).


ORDER

Legal 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