Citation Nr: 1317781 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 12-09 840 ) 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 Rebecca Feinberg, Counsel INTRODUCTION 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). This case comes before the Board of Veterans' Appeals (Board) from a November 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. In that decision, the RO denied legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. FINDING OF FACT The appellant is not shown to have had active military, naval, or air service, and is not 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 VA 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 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Although the appellant was not provided with pre-adjudication VCAA notice concerning his claim, the lack of notice was not prejudicial in this case. Palor v. Nicholson, 21 Vet. App. 325 (2007) (citing Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997)). The Court in Palor stated, "[I]n 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 Palor, 21 Vet. App. at 332. In other words, a VCAA notice error like the one which occurred in this case is not prejudicial where the appellant is not entitled to the benefit as a matter of law. See also Valiao v. Principi, 17 Vet. App. 229 (2003). Information contained in the March 2012 statement of the case stated that verification from the National Personnel Record Center (NPRC) was binding on VA, unless the appellant submitted proof that he served under a different name or service number. In this case, the appellant submitted his Philippine Army documents. As such, he informed VA of the name and service number under which he served. The statement of the case also listed the specific documents that could verify his service if submitted. The appellant never submitted one of these documents or indicated that he served under a name not already provided. NPRC has already conducted searches based upon two variations of the appellant's name. Therefore, there is no other possible development that could be conducted in this case, and the absence of notice does not prejudice the appellant. In addition, the appellant has not contended, and the evidence does not show, that there are any additional, outstanding service records demonstrating that he had qualifying active service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the Armed Forces of the United States, which VA has not obtained or submitted to the relevant service department for verification. Capellan v. Peake, 539 F.3d 1373 (2008) (finding that VA erred in denying the appellant's claim with no review of subsequent evidence by the service department). The Board notes in this regard that the appellant has submitted documents on several occasions to VA in support of his claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. On each occasion when new documents concerning his alleged qualifying active service were received from the Veteran, the RO properly submitted them to NPRC for appropriate service department verification in accordance with the Court's decision in Capellan. Id. The appellant has not asserted that the lack of pre-adjudication VCAA notice was prejudicial to him. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the Board concludes that, because no reasonable possibility exists that providing the appellant with further assistance will aid in substantiating his claim, the lack of pre-adjudication VCAA notice was not prejudicial. See also Sanders v. Nicholson, 487 F.3d 881 (2007), rev'd sub nom. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board concludes that no further notification or development of evidence is required. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA with no additional benefit flowing to the appellant. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Law and 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, 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). 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 above summaries 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 his March 2009 claim, the appellant indicated that he had served in the Marking Fil-Am. Based on the information provided in the March 2009 claim, the RO requested verification of the appellant's service from NPRC, using the appellant's full name, including his complete middle name. The NPRC responded in August 2009 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, the appellant submitted multiple documents purporting to show the required service, including an Affidavit for Philippine Army Personnel, shoring service with the Marking Fil-Am; a separation document from the Philippine Army; and another Philippine Army document showing the appellant's service with the Marking Fil-Am (F-23), from March 1942 to January 1946. In October 2010, NPRC responded to another request from the RO, which had included the appellant's Philippine Army document. The NPRC indicated 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. On this occasion, his name had been searched using both a middle initial and a full middle name. The RO continued the denial of the claim in November 2010, and the appellant submitted a notice of disagreement in July 2011, along with several Philippine Army documents that were duplicates of those already associated with the claims file. 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 has requested verification from NPRC as to service performed by the appellant using every variation of his name provided by the appellant or shown on documents he has submitted. NPRC verified that the appellant did not have the required service. 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., NPRC. The RO complied with its duty to assist by sending a second request for verification, using the names identified by the appellant. Moreover, 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 entitlement to 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. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs