Citation Nr: 1317404 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 10-33 085 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 decision of the RO in Manila, the Republic of the Philippines. In February 2011, the Board remanded the issue for further development because it was unclear as to why the RO did not accept the presence of the appellant's name (a variation of the Veteran's name) on the Reconstructed Guerilla Roster (RRGR) as evidence of qualifying service. For the following reasons, the RO complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The appellant failed to report for his hearing scheduled with the Board at the RO on February 4. 2013. He has not provided good cause for his failure to appear or requested a new hearing. As such, the Board will proceed with his appeal as if his request for a hearing has been withdrawn. 38 C.F.R. § 20.702(d) (2012).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). FINDING OF FACT The appellant is not shown to have had active military, naval, or air service or to have been an individual or a member of a group considered to have performed active military, naval or air service. CONCLUSION OF LAW The appellant does not have status as a veteran for purposes of his claim for a one-time payment from the Filipino Veterans Equity Compensation Fund, and therefore does not meet the requirements of basic eligibility for these benefits. 38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist claimants in the development of their claims. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under VCAA, VA 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; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Palor v. Nicholson, 21 Vet.App. 325, 330-331 (2007), the Court held that the notice provisions of VCAA imposed a duty on VA to inform a claimant of the information and evidence necessary to establish veteran status. In a March 2011 post-rating letter, the RO notified the appellant of the information and evidence necessary to establish veteran status, as well as all other elements of the Dingess notice, including the disability rating and effective date elements of his claim. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Contrary to requirements, the VCAA-compliant notice in this case was provided after the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claim in a June 2012 supplemental statement of the case (SSOC). Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This 'duty to assist' contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The VCAA's duty to assist requirements apply to VA's efforts to obtain verification of service, as explained in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), and this duty was satisfied by the ROs requests for verification of service from the National Personnel Records Center (NPRC) as will be discussed. For these reasons, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for a one-time payment from the Filipino Veterans Equity Compensation Fund is thus ready to be considered on the merits. Analysis In order to be eligible for benefits administered by the VA, the evidence must establish that the individual seeking benefits is a veteran. The term 'veteran' is defined in 38 U.S.C.A. § 101(2) as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 107(a) provides that 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, will not be deemed to have been active military, naval, or air service except for specified benefits including disability compensation benefits authorized by chapter 11, title 38, United States Code. 38 U.S.C.A. § 107(a). Under 38 C.F.R. § 3.40, certain service with the Commonwealth Army of the Philippines, with the Philippine Scouts, and guerilla service is included for VA benefits purposes. These include service of persons enlisted under section 14, Public Law 190, 79th Congress (Act of October 6, 1945). Under 38 C.F.R. § 3.203(a), the 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. A copy of an original document is acceptable if the copy is issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; and (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. When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a), VA is required to request verification of service from the service department. See 38 C.F.R. § 3.203(c). Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and the VA has no authority to amend or change their decision. The Court 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; 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). Under the recently enacted American Recovery and Reinvestment Act, a new 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. 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.' 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. Section 1002(j)(2) of the law also provides that VA will administer its provisions in a manner consistent with VA law including the definitions in 38 U.S.C.A. § 101 except to the extent otherwise provided in the statute. The summary of the law and regulations as to what service constitutes active service for purposes of establishing veteran status reflect that, in order to qualify for compensation under the Filipino Veterans Equity Compensation Fund, a claimant must meet requirements that are included in the requirements under the law and regulations in effect prior to passage of this law. Thus, in order to show entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund, a claimant must satisfy the criteria required for establishing basic eligibility for legal entitlement to VA benefits. In this case, the appellant stated that he served from January 1942 until April 1945 with "'G' Co, 2nd Bn, Cadre Regf, Markings Fil. American Troops." To support his contention, the appellant submitted documents from the Department of National Defense of the Republic of the Philippines. These documents indicate that the appellant served with a unit called "MFAT" during World War II, and that he achieved the rank of Private First Class. Additionally, a document dated in May 1992 from the Department of National Defense of the Republic of the Philippines states that the appellant had recognized guerrilla service from June 1942 until April 1945. Based on this information, a request was made by the RO seeking confirmation of service. In December 2009, it was indicated that the appellant was not listed in the RRGR maintained by the RO. An additional search was made in September 2010 using alternative spellings of the appellant's name, and this time it was revealed that his name was listed in file number 89, on page 208 of the RRGR. By way of the February 2011 Board remand, the RO was required to make a another request for service verification and clarify why the RO did not accept the presence of the appellant's name (or some variation of the name) on the RRGR. In Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the Federal Circuit held (in the context of a Dependency and Indemnity Compensation claim), that 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 also 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. Id. 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. The RO sent the appellant a March 2011 letter notifying the Veteran of the information and evidence necessary to establish veteran status and asking that he send any relevant information and evidence. In March 2011, the RO again requested verification of the appellant's service from the NPRC, indicating that the appellant was listed in the RRGR maintained in the Manila RO, and enclosed the documents the appellant had submitted. In April 2011, the NPRC responded that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. In May 2011, the Veteran submitted additional documentation to include a PVAO (RD) Form No. 022, Certification from the Philippine Veterans Affairs Office (PVAO), dated in January 2011; OTAG/NRD, Certification from Armed Forces of the Philippines, dated on December 22, 2010; and a copy of an affidavit for Philippine Army Personnel dated on April 13, 1948. In June 2012, the appellant submitted another PVAO (RD) Form No. 022, dated in June 2012, to support his claim in rebuttal to the June 2012 SSOC. The Board notes that the documents submitted by the appellant mostly go to support his status as a Philippine veteran. However, his military service with the Philippine Armed Forces is already verified and does not translate into valid military service with the United States Armed Forces. The documents submitted by the appellant did not include a Department of Defense Form DD-214, Armed Forces of the United States Report of Transfer or Discharge, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a). Consequently, the RO was required to request verification from the service department, i.e., the NPRC. The RO complied with the Board's February 2011 remand instructions and its duty to assist by sending its March 2011 request for verification to the NPRC along with the documents the Veteran had submitted after the RO's previous request for verification. Moreover, the NPRC's findings of a lack of qualifying service are binding and conclusive upon the Board. Spence, 13 Vet. App. at 380; Venturella, 11 Vet. App. at 341; Cahall, 7 Vet. App. at 237; Duro, 2 Vet. App. at 532. The Board therefore finds that the appellant did not have the requisite service to qualify for a one-time payment from the Filipino Veterans Equity Compensation Fund. For the foregoing reasons, the appellant had no qualifying service, the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund have not been met, and the claim must be denied. Because VA benefits are not authorized as a matter of law in this case, the benefit of the doubt is not applicable. See Sabonis v. Principi, 6 Vet. App. 426, 429-30 (1994) (where law and not evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under the law). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs