Citation Nr: 1317614	
Decision Date: 05/30/13    Archive Date: 06/06/13

DOCKET NO.  10-43 364	)	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 Fund.


ATTORNEY FOR THE BOARD

Tanya A. Smith, Counsel



INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.  The appellant filed a notice of disagreement with the denial in April 2010 and a statement of the case was issued in September 2010 in response.  The appellant perfected his appeal to the Board in VA Form 9 dated in October 2010.  

In December 2010, in lieu of a hearing before a hearing officer at the RO, the appellant attended an informal conference which he indicated satisfied his request for a personal hearing.  The appellant was also scheduled for a hearing in February 2013 before a Veterans Law Judge of the Board.  The appellant, however, failed to appear and has not attempted to show cause why he did not appear.  Accordingly, the appellant's request for a Board hearing is deemed withdrawn.  38 C.F.R. 
§ 20.704(d) (2012).

The record also reflects that the appellant previously filed a claim for service connection for several disabilities which was denied by the RO in a September 2006 decision on the basis of no qualifying service.  Thereafter, the FVEC Fund and entitlement to compensation there under was established on February 17, 2009.  American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 1002, 123 Stat. 115.  The particular benefit the appellant currently seeks is solely entitlement to a one-time payment from the FVEC Fund.  Accordingly, the current claim is an original claim.  

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file.  A review of the sole document in such file reveals that it is duplicative of the evidence in the paper claims file.

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 National Personnel Records Center (NPRC) 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

As the criteria for basic eligibility for a one-time payment from the FVEC Fund are not met, the claim is without legal merit.  38 U.S.C.A. §§ 101, 107, 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 1002, 123 Stat. 115; 38 C.F.R. § 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

This case relates to eligibility for a one-time payment from the FVEC fund which is governed by the American Recovery and Reinvestment Act of 2009.  The United States Court of Appeals for Veterans Claims (Court) has held that in cases where the claimant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated by the VCAA to inform the appellant of the information or evidence necessary to prove the element of veteran status.  See Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) ("Since veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of VCAA notice concerning proof of veteran status is necessary in most, if not all, cases."); Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008) (noting 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 to be submitted to the service department for review).

In this case, the appellant was provided with notification of the elements necessary to establish qualifying service in May 2011 which was followed by readjudications of the claim in 2012 supplemental statements of the case.  The notification did not specifically provide him with information as to what documents, if any, he could submit that would constitute acceptable evidence of qualifying military service.  See Palor, 21 Vet. App. at 332.  Notwithstanding the foregoing, the RO undertook the necessary development to substantiate the claim and the law, not the facts, is dispositive of this appeal.  As set forth in more detail below, the NPRC 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 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 ("The Federal Circuit's 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 certification, any VCAA error is non-prejudicial as the claimant is not entitled to benefit as a matter of law.  See Palor, 21 Vet. App. at 332 ("Therefore, 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 can conclude only that because the appellant is currently ineligible for VA benefits as a matter of law based on the NPRC's refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error."); see also Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009).  Accordingly, the Board will proceed with adjudication of this matter. 

Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons.  Pub. L. No. 111-5, § 1002, 123 Stat. 115.

VA 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, submitted to VA a claim for benefits under the Act.  The application for the claim shall contain the information and evidence VA requires.  Id. § 1002(c)(1).  If an eligible person who has filed a timely claim for benefits under the Act dies before payment is made, the payment shall be made instead to the surviving spouse, if any, of the eligible person.  Id. § 1002(c)(2).

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 a 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 such service under conditions other than dishonorable.  Id. § 1002(d).

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA.  38 C.F.R. § 3.203(c) (2012).  See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department; not with VA.  A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service.  38 C.F.R. § 3.203 (2012); Soria, 118 F.3d at 749. 

The appellant's application for a one-time payment from the FVEC fund filed on February 28, 2009 was timely received.  Pub. L. No. 111-5, § 1002(c)(1), 123 Stat. 115.  The appellant provided identifying information, including a service number (007313), and reported that he had served with the 301st Anti-Tank Battalion from December 12, 1941 to "1945 HPA."  The appellant submitted documents at that time and additional documents were associated with the claims file thereafter as follows:  (1) P.A., A.G.O. Form No. 55, Certification of Honorable Discharge from the Commonwealth Army of the Philippines dated in February 1946 which listed dates of service from December 12, 1941 to February 18, 1946, listed units of service as 1st Repl. Co. 4th Repl. BN and 301st Anti-Tank Battalion, and identified the appellant's service number as 007313; (2) PVAO-4, Certification from the Philippine Veterans Affairs Office dated in December 1990 (Nos. 65447 and 65449) which listed a unit of service as AT BN PA and indicated that the appellant was a veteran of World War II/Philippine Revolution; (3) birth certificate which listed the appellant's place and date of birth and the names of his mother and father; (4) certificate of marriage; (5) identification cards; (6) U.S. passport; (7) passbook with Landbank (8) U.S. Certificate of Naturalization dated in March 1978; (9) U.S. VA National Service Life Insurance certificate dated in November 1945 (effective April 1942); (10) letter from the New York Veterans Administration dated in December 1947; (11) statement from the appellant's son reaffirming that the appellant was a naturalized U.S. citizen; (12) affidavit from J.E. dated in November 1945 which noted that the appellant had qualifying service from December 16, 1941 to December 23, 1941 while assigned to 301st Anti-Tank Battalion and that he was assigned to the 1st Battalion 88 FA, Philippine Scouts USAFFE beginning December 24, 1941; and (13) Affidavit for Philippine Army Personnel (Form 23) dated in November 1945 which noted dates of service from December 12, 1941 to January 31, 1945 and identified service with the USAFFE (Regular) or (Reservist) and units of service as Hq & Hq Co. 3d Repl. BN, 301st Anti-Tank Battalion, 1st Battalion 88 F.A., P.S., and 2d Repl. BN.  

[In connection with the appellant's prior claim, the Affidavit for Philippine Army Personnel (Form 23) dated in November 1945, U.S. VA National Service Life Insurance certificate dated in November 1945 (effective April 1942), P.A., A.G.O. Form No. 55, Certification of Honorable Discharge from the Commonwealth Army of the Philippines dated in February 1946, documents from the Office of the City Civil Registrar (marriage certificate), and a prisoner of war questionnaire dated in August 2006 were of record.  The National Personnel Records Center (NPRC) certified in September 2006 that the appellant had no qualifying service.]

In December 2010, the RO requested verification of service by the applicable United States service department using the spelling of the Veteran's name, names of his parents, his place and date of birth, reported dates of service and service number, and the unit designations provided in his supporting documents.  It was noted that his name was not listed in the Reconstructed Recognized Guerrilla Roster.  The RO included the Affidavit for Philippine Army Personnel (Form 23), affidavit from J.E., PVAO-4, Certification from the Philippine Veterans Affairs Office, PA., A.G.O. Form No. 55, Certification of Honorable Discharge from the Commonwealth Army of the Philippines, National Service Life Insurance certificate, and the letter from the New York Veterans Administration.

In January 2011, the NPRC responded 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.

Thereafter, it appears the RO attempted to again request verification of service from the NPRC but utilized an atypical form in May 2011.  The NPRC response in February 2012 was that the appellant's records were "fire related" (i.e., destroyed in a fire at the NPRC facility in St. Louis, Missouri, in 1973) and that service could not be verified based on the information furnished.  The NPRC response in September 2006, January 2011, and May 2012 (as detailed below), however, did not indicate that the appellant's records may be fire related, but rather indicated that the appellant had no qualifying service.  The appropriate form for requesting verification of service in cases involving Philippine service was utilized on all of those three occasions.  The Board considers the May 2011 request and February 2012 response outliers.  Indeed, the information furnished by the RO in May 2011 was substantially inadequate to allow a meaningful search thereby rendering the NPRC response unreliable.  

As noted above, in May 2012, the RO again requested verification of service from NPRC, using additional reported dates of service and unit designations.  The RO included the affidavit from J.E., identification cards, PVAO-4, Certification from the Philippine Veterans Affairs Office, birth certificate, marriage certificate, passbook, passport, marriage certificate from the office of the civil registrar, VA Form 21-526, and Affidavit for Philippine Army Personnel (Form 23).  Later that month, NPRC responded that no change was warranted in the prior negative service certification.  Thus, no proof of qualifying service has been established. 

In several statements of record, the appellant has contended that he could not be a holder of an insurance policy with the National Service Life Insurance issued by VA if he did not have qualifying service as a U.S. veteran.  The Board is cognizant that, in regard to 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, shall not be deemed to have been active military, naval, or air service for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the Armed Forces, except for certain benefits including under contracts of National Service Life Insurance entered into before February 18, 1946.  38 U.S.C.A. § 107(a) (West 2002 & Supp. 2012).  The circumstances surrounding the appellant's award of insurance benefits in 1945 is not known.  What is known is that, since that time, the NPRC has found on multiple occasions that the appellant does not in fact have qualifying service.  The Board is bound by that determination. 

The argument has also been raised that the appellant's status as a naturalized U.S. citizen entitles him to the claimed benefit.  In Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997), the Federal Circuit recognized that the Immigration Act allowed Philippine veterans to rely on Philippine-generated documentation to prove veterans' status directly, without necessarily requiring certification by a United States service department.  The Federal Circuit noted that in contrast, Philippine veterans were not eligible for veterans' benefits unless a United States service department documents or certifies their service.  Id.  Moreover, the Federal Circuit recognized that section 405(c) of the Immigration Act specifically provided that "[t]he enactment of this section shall not be construed as affecting the rights, privileges, or benefits of a person described in subsection (a)(1) under any provision of law (other than the Immigration and Nationality Act) by reason of the service of such person or the service of any other person under the command of the United States Armed Forces."  Soria, 118 F.3d at 749 (quoting Pub. L. No. 101-649, 104 Stat. 4978, 5039-40 (1990)); see Fazon v. Brown, 9 Vet. App. 319, 322 (1996) (distinguishing between veterans status for purposes of naturalization purposes and for purposes of veterans benefits), aff'd, 113 F.3d 1255, 1997 WL 177511 (Fed. Cir. April 10, 1997) (Table).  The Federal Circuit concluded that because the United States Department of the Army refused to certify the appellant's alleged service in the Philippine Army, VA properly refused to consider his claim for veterans' benefits based on that service.  Soria, 118 F.3d at 749.  Thus, here, the appellant's status as a naturalized U.S. citizen is not proof of qualifying service. 

As noted above, statements and documentation pertaining to the appellant's reported service in the Philippine Commonwealth Army have been received from the appellant and his son in an effort to support this claim.  None of that documentation or lay evidence, however, qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203 (2012).  On the contrary, that evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought.  Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the FVEC Fund.

NPRC has duly considered the present application for VA benefits and has on three occasions 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.  The Board is bound by that certification.  See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (providing that if the service department does not verify the applicant's claimed service, the applicant's only recourse lies within the service department, not with VA).

The Board is sympathetic to the appellant's situation.  However, 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 the underlying claimant has qualifying service.  The Board is bound by the law as written.  As, on these facts, there is no legal theory that would permit a one-time payment from the FVEC Fund, the appellant's claim must be denied as lacking legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

The claim for a one-time payment from the FVEC Fund is denied.



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs