Citation Nr: 1317879 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 11-32 813 ) 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 Jeanne Schlegel, Counsel INTRODUCTION The Appellant contends that she served in the Philippine Commonwealth Army, to include recognized guerrilla service, in the service of the United States Armed Forces. This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2010 and December 2010 decisional letters by the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the Appellant's claim for compensation from the Filipino Veterans Equity Fund. However, since the veteran status of the person seeking benefits is a threshold requirement for establishing entitlement to such benefit, the initial matter of veteran status is before the Board on appeal. This case was previously before the Board in October 2012, at which time it was remanded for further development relating to service department verification consistent with the holding in the case of Capellan v. Peake, 539 F.3d 1373, 1382 (Fed. Cir. 2008) (discussed in detail later herein). There has been substantial compliance with the Board's remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). A May 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 1. The Appellant lacks qualifying active service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the Armed Forces of the United States. 2. Because the Appellant lacks qualifying service, she is not entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. CONCLUSION OF LAW The Appellant does not have recognized active service for the purpose of obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. § 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Board acknowledges initially that, although the Appellant was not provided with pre-adjudication VCAA notice concerning her 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 her 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). As will be explained below, the Appellant does not have qualifying active service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the Armed Forces of the United States and she is not considered a "Veteran" for VA compensation purposes. See generally 38 U.S.C.A. § 101(2) (West 2002 & Supp. 2012). Such service is a fundamental pre-requisite to qualify for the compensation which the Appellant seeks from the Filipino Veterans Equity Compensation Fund. See generally American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Because the Appellant lacks qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the Armed Forces of the United States, she is not entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund as a matter of law. The Appellant also has not contended, and the evidence does not show, that there are additional outstanding service records demonstrating that she, in fact, 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 her claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. Ultimately, this evidence was forwarded for review by the National Personnel Records Center in St. Louis, Missouri (NPRC), for appropriate service department verification in accordance with the Court's decision in Capellan. Id. In response, NPRC verified in February 2010, May 2010, September 2011, March 2012, and most recently in March 2013, that the Appellant had no qualifying active service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the Armed Forces of the United States. The Appellant has not asserted that the lack of pre-adjudication VCAA notice was prejudicial to her. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board observes that notice as to what is required to substantiate a claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund, including VCAA notice, was provided to the Appellant November 2010. Her claim also was readjudicated in September 2011 and again in April 2013. 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). Accordingly another remand to provide the Appellant with additional VCAA notice would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). In this case, it is the law, and not the facts, that are dispositive of the appeal. Thus, the Board finds that the duties to notify and assist under the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The Court has held that enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. Given the forgoing, the Board will proceed to adjudicate the Appellant's claim. Filipino Veterans Equity Compensation Fund Claim The Appellant contends that she served as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the Armed Forces of the United States during World War II and such service entitles her to a one-time payment from the Filipino Veterans Equity Compensation Fund. Under the 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 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. The Appellant filed a claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund on a VA Form 21-4138 dated on March 1, 2009, and date-stamped as received by the RO on May 13, 2009. The claims file does not contain a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge. Thus, the RO requested verification of the Appellant's military service from the National Personnel Records Center (NPRC). In the first request for information in November 2009, the RO informed the National Personnel Records Center (NPRC) that the Appellant's name was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by VA. The RO did not give NPRC any evidence, but the RO did provide NPRC with the Appellant's current and previous names as E.G.T and E.S.G. The RO listed the Appellant's unit of assignment as "Bayside Regt MFAT," and her dates of service as November 15, 1942, to January 8, 1945. In February 2010, NPRC found that the Appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. NPRC stated that all provided names were searched. In March 2010, the RO submitted a second verification request to NPRC. The RO did not enclose any evidence with the response, but the RO changed the Appellant's unit of assignment to "E Co Bayside Regt MFAT." The same names and dates of service were provided. In May 2010, NPRC determined that the Appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The RO initiated a third request for information in July 2010. The RO again did not enclose any evidence with the response, but changed the Appellant's unit of assignment to "E Co Bayside Regt MFAT/"E" Co. 2nd Battalion, Cadre Regt. MFAT." The RO also added an additional name of E.G. The same dates of service were provided. In September 2010, NRPC responded that they needed the Appellant's AGO PA Form 23 from TAG-PA before they could proceed. In August 2011, the RO again submitted a verification request to NPRC. In this response, the RO changed the Appellant's unit of assignment to "Processing Team No. 2 RPD/Teresa Unit; Marking Fil-Americans/"E" Co Bayside 72nd; Bn. Cadre Regt (MFAT)/Bayside Regt; MFAT/1st Cavl Div US Army/8th Cavl; Div US Army/43rd Div US Army." The RO listed the Appellant's current and previous names as follows: "G., E.; T., E. G.; T., E. G.; G., E. S.; G., E.S.; G., E.S.; G., E.S. (EM)." The same dates of service were provided. In the request, the RO also included the following pieces of evidence: List of Guerrilla Units; Veterans Claims Settlement Affidavit attested by S.S.; Affidavit attested by F.S.F.; Affidavit from the Appellant; Computation of Arrears in Pay; and, Certification from Philippine Veterans Board. The RO also noted on the request that the Appellant's Affidavit for Philippine Army Personnel (Form 23) (also known as AGO PA Form 23 from TAG-PA) was now available. In September 2011, NPRC found that the Appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The RO submitted another verification request in February 2012. The RO listed the Appellant's current and former names as follows: "G., E.S.; T., E. G., G., E." The RO listed the Appellant's unit of assignment as "E Co Bayside Regt MFAT/"E" Co. 2nd Battalion, Cadre Regt. MFAT." The same dates of service were provided. In the request, the RO also included the documents pertaining to the Appellant's Redetermination of Arrears in Pay. In March 2012, NPRC again concluded that the Appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The Board observes that the claims file contains pertinent documents submitted by the Appellant, which had not as of February 2012, been included in a verification request to the NPRC. Specifically, the RO did not include the following evidence in any of its verification requests to the NPRC: a letter dated in October 1964 from the Office of the President of the Philippine Veterans Administration certifying the Appellant as a Veteran of World War II to the Philippine Veterans Bank; Sworn statement dated in November 1942 from the Appellant regarding her military service to the United States; Letter dated in March 1972 from the Department of National Defense, Veterans Claim Settlement Staff; and, Acknowledgement of Receipt from the Headquarters National Defense Forces dated in May 1949. As stated in a Board Remand of October 2012, upon reviewing the aforementioned documents, it was determined that they were relevant to the claim currently on appeal. It was explained that in the case of Capellan v. Peake, 539 F.3d 1373, 1382 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that VA must ensure that service department verifications as to whether an individual served in the United States Armed Forces are based on all available evidence, including any evidence of military service that a claimant submits to VA. In light of this case law, the Board remanded the case so that review of the aforementioned unconsidered evidence could be forwarded to the NPRC to determine whether the Appellant's listed unit of assignment served in support of the Armed Forces of the United States. Accordingly, in November 2012, another request for information was issued to NPRC for review of evidence including: (1) acknowledgement of Receipt from the Headquarters National Defense Forces dated in May 1949; (2) a letter dated in October 1964 from the Office of the President of the Philippine Veterans Administration certifying the Appellant as a Veteran of World War II to the Philippine Veterans Bank; (3) a March 1972 letter from the Department of National Defense; and (4) sworn statement dated in November 1942 from the Appellant regarding her military service to the United States. Follow up requests were also issued in January and February 2013. The search was conducted using 3 different variations of the Appellant's name. In March 2013, the NPRC provided a response indicating that the appellant was not listed in the Reconstructed Recognized Guerilla Roster (RRGR) and that no change was warranted in the prior negative certifications. The Board finds that the Appellant is not entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. On no less than 5 separate occasions (February 2010; May 2010; September 2011; March 2012; and March 2013), the NPRC certified that the Appellant had no qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces such that she is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. Thus, the appellant is not considered a "Veteran" for VA compensation purposes. See generally 38 U.S.C.A. § 101(2) (West 2002 & Supp. 2012). The evidence submitted in support of the information requests included documents from the Philippine government and lay statements from the Appellant maintaining that she had qualifying service. Ultimately, all of the pertinent information submitted by the Appellant in support of her claim was sent to the NPRC. None of the additional information which was submitted to the NPRC for re-verification in 2012/2013 has changed the initial service department verification 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. This verification is binding on VA which has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet App. 530, 532 (1992). As summarized above various forms of evidence including: (1) acknowledgement of Receipt from the Headquarters National Defense Forces dated in May 1949; (2) a letter dated in October 1964 from the Office of the President of the Philippine Veterans Administration certifying the Appellant as a Veteran of World War II to the Philippine Veterans Bank; (3) a March 1972 letter from the Department of National Defense; and (4) sworn statement dated in November 1942 from the Appellant regarding her military service to the United States, were also provided by Appellant for the record. However, none of this evidence satisfies the requirements of 38 C.F.R. § 3.203 as acceptable proof of service as none of them are official documents of the appropriate United States service department but rather documents from the Philippine government. See 38 C.F.R. § 3.203 (2012). The proper course for the Appellant, if she believes that there is a reason to dispute the report of the service department or the content of military records, is to pursue such disagreement with the relevant service department (in this case, the U.S. Army). See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). The Board observes in this regard that recognition of service by the Philippine government is not sufficient for benefits administered by VA because VA is bound by the service department certifications. Given the service department's repeated verification that the Appellant had no qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces, the Board finds that she is not entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. Therefore, the Appellant's claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund must be denied as a matter of law. See Sabonis, 6 Vet. App. at 426. ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs