Citation Nr: 1318370 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 11-16 374 ) 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. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 decision by the Department of Veterans Affairs (VA) Regional Office in Manila, Republic of the Philippines (RO). A 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). FINDING OF FACT In November 2009, June 2012, and January 2013, the National Personnel Records Center (NPRC) certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States. CONCLUSION OF LAW The criteria for obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2011); 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 FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) 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 2012 which was followed by readjudications of the claim in 2012 and 2013 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. Additionally, during the October 2012 Board hearing, the undersigned clarified the issue, explained what was required to substantiate the claim, and elicited testimony relevant to the issue on appeal. As such, the actions of the undersigned during the hearing and the development conducted by the RO cured any VCAA defects and satisfied any duty owed to the appellant during a hearing. Moreover 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 the 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. II. Merits of the Claim The appellant seeks entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. In the present case, the appellant essentially contends that his period of service from August 1944 to June 1946 was qualifying service as recognized guerrilla service in the Philippine Commonwealth Army. 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." See American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 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. In this case, the application was received within the one-year eligibility period, and therefore it was timely submitted. Additionally, § 1002(c)(2) provides that the application for the claim shall contain such information and evidence as the Secretary may require. Further, the section 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 served (1) 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 the 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 (2) in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). Additionally, the section provides that an eligible person from either one of these categories of service must have been discharged or released from service under conditions other than dishonorable. Further, § 1002(i) provides that the service of a person as described in subsection (d) is recognized as active military service in the Armed Forces for purposes of, and to the extent provided in, this section. Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C.A. §§ 101(2), 101(24) (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2012). The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). Service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, is recognized service for certain VA purposes, as authorized by 38 U.S.C.A. § 107 (West 2002). Service in the Philippine Scouts (except that described in paragraph (b) of this section), the Insular Force of the Navy, Samoan Native Guard, and Samoan Native Band of the Navy is included for pension, compensation, dependency and indemnity compensation, and burial allowance with benefits that are payable in dollars at the full-dollar rate. 38 C.F.R. § 3.40(a) (2012). Section 3.40(b), titled Other Philippine Scouts, indicates that service of persons enlisted under section 14, Pub. L. 190, 79th Congress (Act of October 6, 1945), is included for compensation and dependency and indemnity compensation and that with a few exceptions benefits based on service described in this paragraph are payable at a rate of $0.50 for each dollar authorized under the law. The guidelines provide that, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a Service Separation Form, 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, (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. 38 C.F.R. § 3.203(a) (2012). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability. 38 C.F.R. § 3.203(b) (2012). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c) (2012). Findings by the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997). Moreover, where the United States service department does not certify the claimant's alleged service in the Philippine Army, VA cannot consider a claim for Veterans' benefits based on that service. Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997). In March 2009, the RO received the appellant's claim for VA benefits. To support his claim, the appellant included with his claim multiple documents purporting to show that he has the requisite service to establish basic eligibility to receive the one-time payment from the Filipino Veterans Equity Compensation Fund. The documents include evidence that the appellant served in the Philippine Army during World War II. More specifically, the appellant included a statement that contained his reported history of service; a processing and identification slip; special orders extract dated June 11, 1946, copy of a roster, certification from the Office of the Adjutant General (OTAG/NRD) dated April 2010; and enlistment record; copies of various identification cards; a Certificate of honorable discharge (PA AGO Form No. 55); a clearance slip; and, an Extension of education benefits form (PVB Form No. 16-B). The appellant also included lay statements (affidavits) from those with whom he served under, and asserted that his Unit of Assignment was that of 152 AA Bn 11th Airborne Division. The RO sent the appellant's information to the National Personnel Records Center (NPRC) for verification of military service. On the request form, the RO notified the NPRC that the appellant's name was listed in #04, file #571 of the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by the Manila RO. In November 2009 and June 2012 responses, 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. In both requests to the NPRC, the RO included the information the appellant provided in support of his claim, including his date of birth in the year 1928, spelling of his name, and alleged dates of service. The responses from the NPRC indicated that the appellant did not have any qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States. Consequently, the RO determined that the appellant did not have the requisite service to establish eligibility for payment from the Filipino Veterans Equity Compensation Fund and, thus, denied his claim. However, in a September 2010 Report of Telephone Contact, and at his October 2012 video conference hearing before the undersigned, the appellant indicated that he was underage at the time he entered service in 1945, and lied about his age so that he would be eligible for recruitment to serve alongside the Americans in World War II. The appellant explained that he was only 18 years of age in 1945 because his actual birthday was in December 1928; however, when he was asked his age, he lied and said his birthday was in December 1925 so that they would think he was almost. The appellant indicated at his video conference that he only lied about his age at that time, and that he reported his correct birth date (December 1928) on all of his current documentation. Indeed this is consistent with the evidence of record which shows that the appellant's claim for benefits reflects a birth date of December 1928, whereas a purported enlistment record indicates that the appellant's birthday is December 1925, just as the appellant describes in his hearing testimony. In both the November 2009 and May 2012 requests to NPRC for service verification, the RO provided a birth date of December 1928. Because the appellant provided a different birth date of December 1925 on his service records, in November 2012, the Board remanded the appellant's appeal instructing the RO to request verification of service from the NPRC using the December 1925 birthday that was provided to the service department in 1945. In December 2012, the RO contacted the NPRC and requested verification of the appellant's alleged service using his December 1925 birthday. A January 2013 response from the NPRC indicated that no change was warranted from the prior negative determination. The NPRC has duly considered the appellant's application for VA benefits and certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. The Board is bound by NPRC's certification. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the claimed service, the applicant's only recourse lies within the service department, not with VA). The Board concludes that the appellant does not meet the requisite legal requirements for obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund. Therefore, his claim for benefits must be denied. The Board is sympathetic to the appellant, and does not question the sincerity of his belief that he is entitled to this payment. However, a determination on whether the service department made any type of error in this regard is not within the Board's jurisdiction, and the matter must be resolved with the service department and not VA. The Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994). This case is decided based on its application of this law to the pertinent facts. Owings v. Brown, 8 Vet. App. 17 (1995); Kelly v. Derwinski, 3 Vet. App. 171 (1992) (Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant). ORDER Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs