Citation Nr: 1317121 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 12-06 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The appellant contends that her husband had active service during World War II in the Philippine recognized guerrilla forces. She has been substituted as the appellant in this appeal in his place of her deceased husband. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. The original claimant filed a notice of disagreement with respect to the denial of this claim in July 2010. In July 2011, after the issuance of the April 2011 statement of the case (SOC), the current appellant notified VA of her husband's death in March 2011, and filed a petition to be substituted as the claimant in place of her deceased husband. See 38 U.S.C.A. § 5121A (West Supp. 2012). In August 2011, the RO acknowledged the claimant's substitution and again considered and denied her claim of entitlement to a one-time payment from the FVEC Fund based on her husband's alleged service. The appellant perfected her appeal with respect to the denial of this claim in March 2012. 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). FINDINGS OF FACT The service department has not certified that the appellant's husband had any qualifying service as a member of the Philippine Commonwealth Army, including as a recognized guerrilla, in the service of the Armed Forces of the United States; and there is no other satisfactory evidence of such service. CONCLUSION OF LAW The appellant's husband had no recognized active military service for the purpose of obtaining the one-time payment from the FVEC Fund. 38 U.S.C.A. §§ 107, 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act (ARRA) § 1002, Pub. L. No. 111-5 (Feb. 17, 2009); 38 C.F.R. §§ 3.1, 3.6, 3.40, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012). VCAA notice should be provided to a claimant before the initial unfavorable Agency of Original Jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The original claimant was not provided VCAA notice. The current appellant, however, was provided the requisite VCAA notice in November 2011. Although the appellant's notice was provided after the initial adjudication of this claim, the timing deficiency was cured by readjudication of the claim in a supplemental SOC (SSOC) issued in February 2012. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The RO assisted the appellant and her husband, as the former claimant, in substantiating this claim by making multiple attempts to obtain service department verification of her husband's claimed service. There is no indication of any outstanding evidence that could substantiate the claim. The claim does not involve a medical question. Hence an examination or medical opinion is not required. II. FVEC Fund Eligibility Under the ARRA, a one-time benefit is provided for certain Philippine veterans to be paid from the FEVC Fund. ARRA § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Payments for eligible persons will be either in the amount of $9,000.00 for non-United States citizens or $15,000.00 for United States citizens. For eligible persons who accept a payment from the FEVC, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service." However, nothing in the 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." To be eligible for compensation under the FEVC fund, a claimant must have verified service 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 in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538) and was discharged or released from such service described under conditions other than dishonorable. See ARRA § 1002(d), Pub. L. No. 111-5 (enacted February 17, 2009). For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Report of Separation from the Armed Forces of the United States (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 United States 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. If a claimant does not submit evidence of military service, or if information submitted is insufficient, VA must request the information from the service department. 38 C.F.R. § 3.203 (2012). Notably, under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service departments, and the VA has no authority to amend or change their decision. The United States Court of Appeals for Veterans Claims has held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon the VA. See Spence v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In the present case, neither the appellant nor her husband submitted a DD For-214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203. While the record contains discharge orders apparently revealing that the appellant's husband had service with the Army of the Philippines through January 1946, the discharge record was issued by the Army of the Philippines, and not a United States service department. In additional support of this claim, the appellant, and previously her husband, submitted several documents, including, in relevant part, the following: Special Orders number 10-A, dated in June 1943, conveying that the appellant's husband was given an assignment with the Headquarters Company of the First Pangasinan Regiment of the Third Battalion, apparently under the authority of a Lieutenant E. P. R., of the United States Army; discharge orders issued by the Army of the Philippines, conveying service dates between June 1943 and January 1946 and showing two units of assignments listed as Headquarters Company, First Provincial Battalion, First Pangasinan Regiment, and Headquarters Company, Third Provincial Battalion, First Pangasinan Regiment; Special Orders number 23, dated in January 1946, again indicating the appellant's husband was being discharged from the Philippine Army; Special Orders number 6, dated in July 1945, indicating that the appellant's husband received a promotion from the Philippine Army Headquarters; an Affidavit for Philippine Army Personnel, dated in January 1974, again conveying the appellant's husband's dates of service in addition to some of his particular assignments in the Philippine Army; a February 2006 certification from the Philippine Veteran Affairs Office, indicating that the appellant's husband is a regular pensioner; an affidavit from A. R. L., contending that the appellant's husband participated in the operations during the Japanese occupation of the Philippines; and a WD AGO Form 24. Based on the information and evidence provided by the appellant and her husband, the RO made multiple attempts to verify his service. In December 1994, July 1996, August 1996, September 2009, May 2010, and December 2011, the National Personnel Records Center (NPRC) provided certification that the appellant's husband did not have service as a member of the Philippine Commonwealth Army, including as a recognized guerrilla in the service of the United States Armed Forces. Notably, where service department certification of active service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008). In accordance with Capellan, the RO made multiple additional attempts to verify the appellant's husband's service, as noted above, based on an alternate spelling of his first name, as noted in some of his Philippine Army service records; based on two slightly different noted dates of birth, and based on two noted units of assignment. The certification also considered multiple pieces of evidence submitted by the appellant and her husband. The appellant has contended that the NPRC's inability to certify her husband's service is because his records were destroyed in the July 1973 fire at the NPRC. She submitted evidence belonging to another claimant who was also seeking a one-time payment under the FVEC Fund indicating that that claimant had been notified by the NPRC of the potential destruction of such service records. In the instant case, however, there is no evidence to suggest that the NPRC has not employed due diligence in attempting to verify her husband's service. Notably, the December 2011 NPRC certification further indicated the appellant's husband was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by the RO in Manila. Based on the foregoing, the Board finds that the appellant has not submitted acceptable evidence of her husband's active service in accordance with the provisions of 38 C.F.R. § 3.203. Moreover, although the RO made multiple attempts to obtain certification from the service department, the NPRC provided certification on each occasion, indicating that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. These determinations are binding on VA. See Capellan, 539 F.3d 1373 (if the service department refuses to verify the claimed service, the applicant's only recourse lies within the service department, not with VA). While the Board is sympathetic to the appellant's situation, and does not question the sincerity of her belief that her husband was entitled to the benefit sought, the pertinent legal authority governing entitlement to payments from the FVEC Fund is clear and specific: It must be shown by verification of the United States service department that a claimant has qualifying service. Such verification is absent in this case, and the Board is bound by the law as written. Based on this evidence, the appellant's husband may not be considered a veteran for the purpose of establishing entitlement to a one-time payment from the FVEC Fund. Accordingly, the benefit sought on appeal must be denied. ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs