Citation Nr: 1318267 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 11-33 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a onetime payment from the Filipino Veterans Equity Compensation Fund. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The denial was based on lack of qualifying service to render the appellant eligible for the benefit sought. 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 did not have active military, naval, or air service, and was 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 onetime payment from the Filipino Veterans Equity Compensation Fund, and therefore he 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 Veterans Claims Assistance Act of 2000 In Palor v. Nicholson, 21 Vet. App. 325 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, in claims where it is necessary to first establish veteran status, proper VA notice must be tailored to also inform claimants of the information or evidence necessary to prove the element of veteran status, what information the claimant/appellant is responsible for providing, and what information VA will seek to obtain concerning that element. A review of the claims file shows the appellant was not advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. He was provided with notice of what evidence was needed to show entitlement to Filipino Veterans Equity Compensation benefits by means of August 2011 correspondence, and an October 2011 statement of the case. The statement of the case addressed the types of evidence VA was responsible for getting, as well as the types of evidence the appellant was responsible for. The appellant has not been prejudiced by any notice defects. The appellant has not alleged that he was prejudiced because he did not receive notice of what was needed to substantiate his claim prior to the RO decision denying benefits, and the Board's review of the record does not disclose prejudicial error in the development of this case. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The record reflects that based on information and evidence submitted by the appellant in 2009 and 2010, the RO sought service department verification of his claimed service through the National Personnel Records Center. That Center had previously determined in February 1963 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. Following the appellant's submissions the National Personnel Records Center in January and August 2011 again determined that he had a no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Based on that service department certification that the claimant did not have qualifying service, the RO determined that he was ineligible for VA benefits as a matter of law. When an appellant is ineligible for VA benefits as a matter of law based on the service department's refusal to certify the alleged service, he is not prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status. See Palor, 21 Vet. App. at 332-33 (noting that "given the binding nature of the U.S. service department's certification . . . a remand for further development could not possibly change the outcome of the decision.") As noted, the RO sought certification of the appellant's military service in 1963 and 2011. There is no indication that information submitted by VA to the service department for the purposes of certifying his service was erroneous or incomplete. The appellant has submitted multiple documents, to include copies of his Affidavit for Philippine Army personnel; a Philippine Veterans Affairs Office identification card, a Veterans Federation of the Philippines identification card; a June 2000 certificate from the Armed Forces of the Philippines, Office of the Adjutant General; an affidavit from "disinterested persons;" and a December 2010 report from the Philippine Veterans Affairs Office which notes that office's approval of a claim for "old age pension." None of this evidence, however, suggests that further development is in order through the National Personnel Records Center. This is so because the appellant's contentions with respect to the units in which he served remain unchanged since he first reported his unit information. Furthermore, the RO has supplied the service department with a copy of all pertinent documents. Therefore, VA's duty to assist has been met. Accordingly, the Board will address the merits of the claim. Laws and Regulations 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. The provisions of 38 U.S.C.A. § 107(a) state 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. 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 departments. 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, 13Vet.App. 376 (2000) (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 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 in the amount of $9,000 for non-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) of the American Recovery and Reinvestment Act 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 onetime 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. Analysis The appellant filed his claim for entitlement to a onetime payment from the Filipino Veterans Equity Compensation Fund with the Manila VA RO. He had previously submitted documents in support of his claim which are described briefly above. The RO sent a request to the National Personnel Records Center containing the information provided by the appellant regarding his claimed service. In 1963, in response to a prior claim, and twice in 2011, in response to this claim, the National Personnel Records Center reported 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. While "Philippine claimants are not limited solely to (National Personnel Records Center's) verification as a means of proving veteran status, as they may also submit official evidence from the individual United States Service Department that verifies their service," Palor, 21 Vet.App. at 330, the appellant in this case has not done so. As the National Personnel Records Center's determination as to the appellant's service is binding on VA, the appellant is not a "veteran" for purposes of entitlement to VA benefits. Id. at 332. Veteran status is a prerequisite to entitlement to both nonservice-connected pension and payment from the Filipino Veterans Equity Compensation Fund. Therefore, the appellant's claim for entitlement to a onetime payment from the Filipino Veterans Equity Compensation Fund must be denied as a matter of law. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). ORDER Entitlement to a onetime payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs