Citation Nr: 1316447 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 12-27 035A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to one-time payment from the Filipino Veterans Equity Compensation (FEVC) Fund. ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from RO determinations dated in October 2010 and June 2011, which denied the appellant's claim for one-time payment from the FEVC Fund. 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). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND The appellant claims that he is entitled to a one-time payment from the FEVC Fund, based on World War II service as a Recognized Guerrilla. Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC 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 any person who 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ); and was discharged or released from service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Findings by the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces. Venturella v. Gober, 10 Vet. App. 340 (1997); Dacoron v. Brown, 4 Vet. App. 115 (1993); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). 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 Veterans' benefits based on that service. Soria v. Brown, 118 F.3d 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 three separate occasions, 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. However, since the most recent response from National Personnel Records Center (NPRC), the appellant has submitted additional evidence, the relevance of which cannot be ruled out. In general, after a service department has failed to verify service, new evidence relating to a claimant's service requires VA to again request verification. See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008) (holding that the duty to assist requires that new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review, if the additional evidence contains information which could change NPRC's previous certification (such as a new name, etc.)). While another attempt may not be required if new evidence is submitted that is cumulative of evidence previously submitted, here, the new evidence provides specific evidence regarding the dates and unit to which the appellant was reportedly assigned. Specifically, previously, the appellant submitted excerpts from a booklet entitled "Commendations," provided by the Information and Education Office of the Philippine Army. This did not sufficiently identify the organization in which the appellant reportedly serviced, or the dates. In October 2012, the appellant submitted additional pages from that document. Specifically, pages 55-56 contain a Letter of Commendation dated February 11, 1945, from J. E. Rees, Commanding Officer of the First Infantry Regiment, in which he states that during the period from January 30, 1945, to February 9, 1945, Squadron 103rd USAFFE, Philippine Guerrillas, Headquarters, Rizal Nueva Ecija, was attached for duty with the First United States Infantry Regiment, Sixth Infantry Division. Pages 57-61 contain the Roster of Company "A" of Squadron 103rd; the name of the appellant is listed as a private on page 59. The previous requests contained a hodgepodge of unit assignments, due to the lack of consistency in the appellant's reports, and none were limited to the specific dates contained in the above Letter of Commendation. Particularly given the appellant's inclusion in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained at the Manila RO, the Board is of the opinion that the new evidence, more specifically limiting the potential dates and unit assignments, should be submitted to NPRC to request verification. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the service department and seek service department verification of the appellant's claimed active service in the U.S. Armed Forces in the Far East in World War II, based on additional evidence received in October 2012. Specifically, the request should consist of the following: * For "unit of assignment," the information should be limited to the following: Company "A," Squadron 103rd USAFFE, Philippine Guerrillas, Headquarters, Rizal Nueva Ecija, attached to the First United States Infantry Regiment of the Sixth Infantry Division. * The personal information, e.g., name, date of birth, should be as in the June 2012 request. * The dates of service should be noted to specifically include the period from January 30, 1945, to February 9, 1945, at the rank of Private. In connection with this request, provide the service department with copies of pages 55-61 of the booklet excerpts received in October 2012. 2. Thereafter, the RO should readjudicate this claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the appellant the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).