Citation Nr: 1318377 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-48 822 ) 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 (FVEC) Fund. REPRESENTATION Appellant represented by: American Defenders of Bataan and Corregidor, Inc. WITNESSES AT HEARING ON APPEAL Appellant and R.G. ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The appellant contends that he served in the Philippine Commonwealth Army, to include recognized guerrilla service, in the service of the United States Armed Forces, from April 1943 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. At the beginning of the appeal, the Veteran was represented by Rodolfo M. Soriano, Jr., attorney at law. In a January 2011 VA Form 21-22, the Veteran appointed the American Defenders of Bataan and Corregidor as his representative, thereby revoking the earlier power of attorney. See 38 C.F.R. § 14.631(f)(1). In April 2012, the appellant testified at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims file, which shows that the appellant opted to proceed without his representative. See April 2012 Hearing Transcript, p. 2. In January 2013, the Board remanded the Veteran's claim and specifically instructed the agency of original jurisdiction (AOJ) to make an additional request for verification of service from the National Personnel Records Center (NPRC) based on additional information provided by the appellant at his hearing. Pursuant to this remand, the AOJ submitted the new information to the NPRC in conjunction with another request for verification of the appellant's service. Based on the additional information, the NPRC confirmed that the appellant had no service as a member of the Philippine Commonwealth Army. As such, the Board finds that the AOJ completed the development requested in the January 2013 Board Remand and complied with the remand instructions. See Stegall v. West, 11 Vet. App, 268 (1998). 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 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. CONCLUSION OF LAW The service requirements for eligibility to a one-time payment from the FVEC Fund have not been met. 38 U.S.C.A. § 5101(a) (West 2002 & West 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 FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012), and implemented at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As the law is dispositive in the instant claim, the VCAA is not applicable. II. Analysis The appellant seeks compensation from the FVEC Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009) (to be codified in Title 38 of the United States Code: Veterans' Benefits). 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. The Secretary of VA is to administer the fund consistent with applicable provisions of the Title 38 of the United States Code. For eligible persons who accept a payment from the FVEC Fund, such payment shall constitute a complete release of any claim against the United States by reason of such service. However, nothing in the act prohibits 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. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). 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; (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of the Department of Veterans Affairs the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). 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); Duro v. Derwinski, 2 Vet. App. 530 (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. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service. 38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). In March 2009, the appellant submitted an application for a one-time payment from the FVEC Fund. He reported that he had served in the 103rd Squadron Battalion, Luzon Guerrilla Army Force (LGAF) from February 14, 1945 to October 3, 1945. See March 2009 claim and May 2000 Affidavit of Appellant. Pursuant to a previous claim for service-connected benefits, VA attempted to verify the appellant's service with the NPRC multiple times, and received negative responses both in April 1998 and March 1999. In February 2010, the NPRC 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. In the April 2010 decision, the RO denied the appellant's claim for entitlement to the one-time payment from the FVEC Fund. In support of his claim, the appellant has submitted copies of documents related to his service, including but not limited to, numerous self-affidavits certifying that he was a member of the 103rd Guerrilla Squadron, LGAF, as well as a guerrilla member of the Headquarter 2nd Battalion 63rd Infantry; affidavits from L.H., and W.M., former Captains of the 63rd Infantry Adjutant certifying that the appellant had served with their unit since February 14, 1945 and was released from service effective October 3, 1945; memorandums issued by the PVAO and dated in February 2004 and June 2010, certifying that the appellant served with the LGAF and was a veteran of the World War II/Philippine Revolution from April 1943 to October 1945; an August 2001 letter from the Republic of the Philippines Department of National Defense Military Service Board indicating that appellant's application for confirmation of military veteran status had been approved; numerous affidavits from his fellow servicemen attesting to the fact that they also served in the 103rd Squadron, LGAF, and that the appellant served alongside them with the recognized guerrilla forces in the Philippine Commonwealth Army; and a March 1967 letter from the PVAO certifying that one of the appellant's former servicemen served in the 103rd Squadron LGAF and was a veteran of World War II. The appellant also submitted a February 2002 letter from the PVAO indicating that the appellant's claim for Old Age Pension benefits had been approved; certification letters issued by the Records Officer at the PVAO and dated in August 2002 and January 2003 certifying that the appellant had been for approved for Old Age Pension benefits; affidavits submitted by the appellant's attorney as well as copies of the appellant's identification card, both of which provided the correct spelling of his name; and medical certificates from the appellant's various treatment providers. Utilizing this additional information, the AOJ sent another request to the NPRC with the accompanying evidence, and asked that the service department verify whether there had been qualifying service. (The Board notes that the appellant's correct first and last name, as well as every variation and alternative spelling for his first, middle and last name were included in this request.) In September 2011, the NPRC once again responded that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States. In each one of their requests for verification, the AOJ always noted that the Veteran entered active duty on February 14, 1945 and departed from active duty on October 3, 1945. During the April 2012 hearing, the appellant stated that he entered military service on April 14, 1943, and that he was transferred to service with the United States military in February 1945. See April 2012 Hearing Transcript, pp. 3-4. In Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the Federal Circuit held that, generally, after a service department has failed to verify service, new evidence relating to a claimant's service requires VA to again request verification. Id. at 1381. Based on the new reported entrance date, follow-up requests were sent to the NPRC and negative responses were received in October 2012 and December 2012. However, the follow-up requests listed February 14, 1945, as the date entered into the military, rather than the new date provided during the hearing. Pursuant to the January 2013 Board Remand, the AOJ sent another request to the NPRC with this additional evidence. Specifically, the request for verification contained both the previous dates of service (February 14, 1945 to October 3, 1945) and the more recently provided dates of service (April 14, 1943 to October 3, 1945). This request also contained the appellant's units of assignment during his claimed period of service, the correct spelling of the appellant's name, and variations of the appellant's name. The AOJ asked the service department to verify whether the Veteran had qualifying service based on all the information provided, to include the enclosed dates of service. Using this information, the NPRC confirmed again in March 2013, that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United Armed Forces. The Board notes that in one particular affidavit, date stamped as received in December 2010, the appellant explained that he was a "Recognized Guerilla", which pursuant to certain regulatory provisions, was defined as "persons who provided acceptable service in resistance units recognized by and cooperating with the United States during the period from April 20, 1942 through June 30, 1946." The Board finds that an additional request for verification of service is not necessary based on the above referenced dates of service because the appellant did not contend that he himself enlisted and separated from service within this particular parameter, but rather that he is a recognized guerilla which has been defined as a someone who served in resistance units recognized by the United States within that particular parameter. As such, this is not additional information pertaining to the Veteran's period of service, and does not need to be submitted to the NPRC in conjunction with another verification of service request. The Board has carefully considered the documentation submitted by the appellant, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The documents submitted by the appellant were not issued by the service department, nor do they contain the necessary information to establish entitlement to the benefit sought. As such, those documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA, including the one-time payment from the FVEC Fund. The proper course for the appellant, if he believes 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 service department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for entitlement to the one-time payment from the FVEC Fund. This department is bound to follow the certifications by the service departments with jurisdiction over United States military records. More importantly, the NPRC has certified at least seven times (April 1998, March 1999, February 2010, September 2011, October 2012, December 2012, and March 2013) 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. This verification is binding on VA such that VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Based upon the record in this case, 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. Veteran status is a prerequisite to entitlement to payment from the FVEC fund. As such, entitlement to a one-time payment from the FVEC Fund is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ REBECCA N. POULSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs