Citation Nr: 1316965 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 13-07 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Eligibility for a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Commonwealth of the Philippines Armed Forces Office of the Adjutant General has indicated that the appellant's deceased spouse had military service from December 1942 to April 1945. This matter comes before the Board of Veterans' Appeals (Board) from an October 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, that denied the benefit sought on appeal. 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 appellant's spouse did 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 requirements for eligibility to a one-time payment from the FVEC Fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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) (noting that, since veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of notice concerning proof of veteran status is necessary in most, if not all, cases). In this case, the appellant was provided with the required notification prior to the initial adjudication of the claim via a June 2010 notice letter. In addition, the RO has explained to the appellant that verification of military service was the responsibility of the National Personnel Records Center (NPRC) and its findings are binding on VA. Because NPRC has certified that the appellant's deceased spouse 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, she is not legally entitled to payment from the Filipino Veterans Equity Compensation Fund. As set forth in more detail below, the service department has certified on multiple occasions that the appellant's spouse 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. VA is bound by this certification. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 (noting that the 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 v. Derwinski, 2 Vet. App. 530, 532(1992). In light of the binding certifications, further notification is not necessary. See Valiao v. Principi, 17 Vet. App. 229 (2003); see also Palor, 21 Vet. App. at 332-33 (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 could conclude only that because the appellant was currently ineligible for VA benefits as a matter of law based on the [service department's] refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error). 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 multiple documents to support her contention that her deceased spouse had recognized service during World War II. These documents have been reviewed by both the RO and the Board in connection with adjudication of the claim. The appellant has not identified any additional records that VA needs to obtain. 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. 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, two requests were made to the National Personnel Records Center (NPRC) for affirmation of recognized guerrilla service for the appellant's spouse. Each request included a copy of the documents submitted by the appellant. Thus, the Board finds that VA has complied with the duty to assist and due process requirements, and that it may proceed to adjudication of the claim on the merits. 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. In addition, Section 1002(c)(1) provides that the Secretary may make a payment from the compensation fund to an eligible person who, during the one-year period beginning on the date of the enactment of the Act, submits to the Secretary a claim for benefits under this section. The application for the claim shall contain such information and evidence as the Secretary may require. Section 1002(c)(2) provides that if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person. In this case, as an initial matter, the Board notes that the appellant's spouse filed a claim for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund in February 2009. He died in July 2009, and the appellant has since continued to prosecute the claim. Thus, under Section 1002(c)(2), the appellant is a surviving spouse and is thus potentially eligible for the benefit. In this instance, the case turns on whether the appellant's spouse had the requisite military service. For the purpose of establishing entitlement, 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 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 U.S. 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 alleged service in the Philippine Army, VA cannot consider a 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 her deceased spouse served with the Philippine Commonwealth Army during World War II in a unit designated as "2nd Co (Makiling Bigaa Unit) Cadre Regt (F-23)" from December 1942 to April 1945. She submitted an Affidavit for Philippine Army Personnel, authenticated in October 2011, to support this contention. The appellant also submitted a document from the General Headquarters of the Armed Forces of the Philippines Office of the Adjutant General, dated in April 1997, confirming that her spouse served as a "recognized guerrilla" from January 1945 to April 1945. In addition, the appellant has submitted her spouse's Certification of Service from the General Headquarters of the Armed Forces of the Philippines, dated in October 2011, documenting that her spouse had service from December 1942 to April 1945. He was also awarded pension from the Philippine Veterans Affairs Office for his service and held an account at the Philippine Veterans Bank. The record shows that the RO requested a determination from the United States service department as to whether the appellant's spouse had recognized service in the U.S. Armed Forces, including as a recognized guerrilla. In September 2010, January 2012, and again in February 2012, the NPRC indicated that the appellant's spouse had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces. Each determination was based on a review of the information submitted by the appellant and her spouse regarding the dates and nature of the spouse's service during World War II, including the multiple supporting documents discussed herein, as well as the submitted affidavit. As set forth above, the NPRC has, on three separate occasions, certified that the appellant's spouse 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 documentation 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. These documents were not issued by a United States service department, and do not contain the necessary information to establish entitlement to the benefit sought. Although the Board acknowledges that the appellant has submitted multiple official documents, these documents do not establish service on behalf of the United States Armed Forces as required by law and regulation. As such, these documents may not 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 Filipino Veterans Equity Compensation Fund. The Board has also considered the appellant's documentation concerning her spouse's naturalization as a United States citizen. However, the decision of the United States to naturalize him does not have any bearing on whether he had service as a recognized guerilla. While service in the U.S. Armed Forces may be a factor in the above processes, it clearly is not a pre-requisite, and the documentation submitted by the appellant confirms only that her spouse was naturalized as a citizen of the United States, not that the decision was made based on any confirmed service in the United States Armed Forces. Again, the Board is bound by the United States service department's certification. See, e.g., Capellan, 539 F.3d at 1376 (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"). In consideration of the evidence of record, the Board finds that the appellant has not submitted any service document that establishes her spouse's service as a soldier or recognized guerrilla with the U.S. Armed Forces. The appellant has also submitted statements indicating that her spouse did serve with the U.S. Armed Forces during World War II. The Board has considered the appellant's contention; however, VA is bound by the service department's certification with respect to her spouse's status. In this case, the service department has considered the question of the military status of the appellant's spouse on several occasions, including three separate reviews of the documentation of record and discussed herein. However, each time the NPRC considered the question of the service of the appellant's spouse, it returned a negative response. In light of the service department's certification that the appellant's deceased spouse did not have service in the Philippine Commonwealth Army or as a recognized guerrilla with the U.S. Armed Forces, the Board finds that the preponderance of the evidence is against the claim. 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 Eligibility for a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund is denied. ______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs