Citation Nr: 1317108 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 11-29 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant is a Veteran for the purpose of establishing entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant contends that he had recognized guerrilla service, in the service of the United States Armed Forces during World War II. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the appellant's claim for one-time payment from the Filipino Veterans Equity Compensation Fund. A notice of disagreement was received in November 2010, a statement of the case was issued in August 2011, and a substantive appeal was received in September 2011. The appellant failed to appear for a Travel Board hearing in January 2013. 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 United States Armed Forces. CONCLUSION OF LAW The appellant is not eligible for one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 107 (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Palor v. Nicholson, 21 Vet. App. 325 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, in claims where it is necessary to first establish Veteran status, proper VCAA notice must be tailored to also inform claimants of the information or evidence necessary to prove the element of Veteran status, what information the appellant is responsible for providing, and what information VA will seek to obtain concerning that element. A close review of the claims file found that the appellant was advised of VA's duties to notify and assist in the development of his claim by letters dated in June 2011 and April 2012. While these letters were not issued prior to the initial adjudication of this matter, an October 2012 supplemental statement of the case readjudicated the matter after the appellant had opportunity to respond and further development was completed. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim). To the extent there is any defect in the timing or content of the notice provided, the Board finds that the appellant is not prejudiced by such notice defect. In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court reversed the case of Sanders v. Nicholson, 487 F.3d 881 (2007), which had held that any error in VCAA notice should be presumed prejudicial and that VA must always bear the burden of proving that such an error did not cause harm. In reversing Sanders, the Supreme Court in essence held that - except for cases in which VA has failed to inform the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki, 129 S. Ct. at 1704-06. The appellant has not alleged that he was prejudiced because he did not receive timely notice of what was needed to substantiate his claim. The record reflects that based on information he provided in association with his February 2009 claim for benefits, the RO sought service department verification of his service, and based on service department certification that he did not have qualifying service, determined he is ineligible for VA benefits as a matter of law. The RO sought subsequent re-certifications after additional evidence was received. Based on these re-certifications that the Veteran did not have qualifying service, the RO continued the determination that he is ineligible for VA benefits as a matter of law. When an appellant is ineligible for VA benefits as a matter of law based on the service department's refusal to certify the appellant's service, he is not prejudiced by VA's failure to notify him of the various methods available for proving Philippine Veteran status. See Palor, 21 Vet. App. at 332-33 ("given the binding nature of the U.S. service department's certification . . . a remand for further development could not possibly change the outcome of the decision"). The RO sought certification of the appellant's military service in June 2009, November 2009 (resent in May 2010), July 2010, June 2011 and April 2012 and advised him of what documents he could submit to assist in the matter. He has not identified or submitted any further evidence suggesting that another re-certification of his service/nonservice is necessary. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Factual Background The Board notes that it has reviewed all of the evidence of record, to include in the claims file and in "Virtual VA" file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. (Virtual VA does not contain any evidence or correspondence pertinent to the matter at hand.) In February 2009, the appellant submitted a VA Form 21-4138 (CF) to apply for a one-time payment from the Filipino Veterans Equity Compensation Fund. He contended that he had active service as a Recognized Guerrilla, provided his birthplace and date of birth, and stated that he served with "Hq & Hq Service Co Camp Terring Cabatuan Hoilo/Camp Hernandez Dingle from September 3, 1942 to September 26, 1945. He also provided his service number, the names of his father, mother, and current spouse, and his Philippine Veterans Affairs Office (PVAO) claim and account number. In June 2009, the RO submitted the appellant's name, date of birth, place of birth, unit of assignment and dates of service, and the names of his parents and spouse to the National Personnel Records Center (NPRC) and requested that they furnish complete AGUZ Form 632 and all extracts of Form 23 executed prior to and subsequent to June 30, 1946. The request noted that the appellant's name was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by the Manila VA RO. In September 2009, NPRC 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. In November 2009, the RO included an additional name under which the appellant served to the information submitted to NPRC and requested re-verification. (The request was resent in May 2010.) In June 2010, NPRC again 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. In July 2010, the appellant submitted: (1) 2 copies of a June 29, 2010 Certification of his service from General Headquarters, Armed Forces of the Philippines, Office of the Adjudant General; (2) his February 13, 1946 Affidavit for Philippine Army Personnel; (3) and a May 20, 2010 Request for Military Service Record, Department of National Defense, Philippine Veterans Affairs Office certifying the appellant's service. In July 2010, the RO included additional names under which the appellant served, changed his unit of assignment to "Co B 1st Bn 63rd Inf (F-23)/Hq Co 2nd Bn 63rd Inf 6th MD," noted that his last grade, rate or rank had been "Pfc" and requested re-verification from NPRC. The request noted how and on which page the appellant's name was listed in the RRGR maintained by the Manila VA RO. In September 2010, NPRC again 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. In November 2010, the appellant disagreed with the denial of his claim and submitted another copy of his February 13, 1946 Affidavit for Philippine Army Personnel. The RO requested re-verification from NPRC in June 2011. In July 2011, NPRC certified that no change was warranted in the prior negative service certification. With his September 2011 substantive appeal (VA From 9, Appeal to Board of Veterans' Appeals), the appellant submitted another copy of his June 29, 2010 Certification of his service from General Headquarters, Armed Forces of the Philippines, Office of the Adjudant General and February 13, 1946 Affidavit for Philippine Army Personnel. In April 2012, the RO removed the additional names under which the Veteran may have served and changed his unit of assignment to "6th MD/"B" Co 1st Bn, 63 Inf, 6MD/"C" 1st Bn, 63rd Inf/"H" Co 2nd Bn, 63rd Inf/Commu Platn/10th Co, 3rd Bn, 6rh Repl Stn Complement APO 715/AFWES PAC/2nd Bn 63rd Inf CT 6th MD" and requested re-verification from NPRC. Later in the same month, NPRC again 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. Legal Criteria and Analysis 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 Feb. 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. Section 1002 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East During World War II. 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 this 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. Section 1002(d) provides that an eligible person is 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. For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . ." However, nothing in this act "prohibit[s] a person from receiving any benefit (including health care, survivor, or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of this Act." For purposes of establishing entitlement to VA 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 under 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). When the claimant does not submit evidence of service or the evidence does not meet the requirements of this section, the VA shall request verification of service from a service department. 38 C.F.R. § 3.203(c). The appellant has not submitted any documents that meet the first requirement of 38 C.F.R. § 3.203(a). He has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the U.S. Armed Forces. Therefore, VA sought service department verification of whether the appellant served in the U.S. Armed Forces in the Philippines. In September 2009, June 2010, September 2010, July 2011, and April 2012, based on the information contained in the appellant's claims forms and in the documents he submitted, the service department (via the NPRC) certified it had no record of the appellant serving as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The Board notes that while there are documents certifying that the appellant is a Veteran of World War II, these documents have not been provided by a U.S. service department, and they are therefore inadequate to establish Veteran status. See 38 C.F.R. § 3.203(a). Conversely, certifications from the service department (via the NPRC) are binding on VA, and VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet. App. 530 (1992). If a change of service department certification is what the appellant seeks, his remedy lies with the service department and not with VA. The appellant has provided no further evidence (since the negative April 2012 re-certification) that would warrant another request for re-certification of his service/nonservice by the service department and VA must abide by the service department's certification. See Capellan v. Peake, 539 F.3d 1737 (Fed Cir. 2008); Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Accordingly, the Board finds the appellant did not have the requisite service and is not a Veteran so as to establish eligibility for compensation from the Filipino Veterans Equity Compensation Fund. Since the law is dispositive in this matter, the claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs