Citation Nr: 1318427 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 10-41 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC). ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION This matter is before the Board on appeal from an April 2010 determination from the above-referenced Regional Office (RO). 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 National Personnel Records Center (NPRC) has certified on multiple occasions that the appellant did not have qualifying active military service as a member of the Philippine Commonwealth Army, including recognized guerrilla service, in the service of the United States Armed Forces. CONCLUSION OF LAW The appellant does not have recognized active military service for the purpose of obtaining the one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. § 501(a) (West 2002); 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 Duty to Notify and Assist Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In Palor v. Nicholson, 21 Vet. App. 325 (2007), the 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 close review of the claims file shows that it is not entirely clear that the appellant was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. However, he was provided with notice of what evidence was needed to show entitlement to FVEC benefits by means of a letter sent to him in September 2012, which also addressed the types of evidence VA was responsible for getting, as well as the types of evidence the appellant was responsible for. The case was thereafter readjudicated by means of a Supplemental Statement of the Case (SSOC) issued in March 2013. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The Board finds that the appellant has not been prejudiced by any notice defects. He has not alleged that he was prejudiced because he did not receive notice of what was needed to substantiate his claim, and the Board's review of the record doe not discloses prejudicial error in the development of this case. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The record also reflects that, based on the various documents the appellant provided in support of his claim, the RO sought service department verification of his claimed service by way of the NPRC and, based on service department certification that he did not have qualifying service, determined that he is 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"). During the pendency of this appeal, the RO sought certification of the appellant's military service on at least four occasions, beginning in February 2010. On each occasion when new documents concerning his alleged qualifying active service were received from the appellant, the RO properly submitted them to the NPRC, for appropriate service department. In response, NPRC verified in March 2010, December 2012, February 2013, and 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. There is no indication that information submitted by VA to the service department for the purposes of certifying his service was erroneous or incomplete. VA's duty to assist has been met; and, accordingly, the Board will address the merits of the claim. Law and Analysis The appellant is seeking entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. In this regard, he purports that he had valid military service as a member of the organized guerrilla forces under a U.S. Command during World War II and such service entitles him 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 following certifications by the service departments will be accepted as establishing guerrilla service: (i) recognized guerrilla service; (ii) unrecognized guerrilla service under a recognized commissioned officer only if the person was a former member of the United States Armed Forces (including the Philippine Scouts) or the Commonwealth Army. 38 C.F.R. § 3.40(d)(2). 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 VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). With respect to documents submitted to establish a creditable period of wartime service, 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 ninety days for a line of duty disability. 38 C.F.R. § 3.203(b). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). The Court has held that the findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Venturella v. Gober, 10 Vet. App. 340 (1997); Dacoron v. Brown, 4 Vet. App. 115 (1993). The appellant filed a claim of entitlement to a one-time payment from the FVEC on a VA Form 21-4138 dated in February 2009. The appellant has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1). He instead submitted copies of various documents from the Philippine government, including an application for Old Age Pension (Veteran), which shows he was approved for benefits through the Philippine Veterans Affairs Office (PVAO) in November 1990; a January 1979 letter from the PVAO advising him that he was approved for certification to the Civil Service Commission; documentation showing he was among a list of veterans certified by the PVAO as entitled to shares of the Philippine Veterans Bank; and a March 1949 letter from the Department of National Defense, Philippine Veterans Board, advising him that he had been awarded educational benefits. The appellant also submitted copies of a certification from the Headquarters National Defense Forces, Camp Murphy dated in January 1949 which shows that in September 1943 he had been inducted into the Guerillas as a 1st Sergeant with the L Company, 3rd Battalion, 119th Infantry and was honorably discharged in September 1945 upon his own request. Also of record is a Certificate of Discharge from the Philippine Army documenting the appellant's service as a civilian guerilla in the Philippine Army; as well as copies of a Republic of the Philippines Office of Senior Citizens Affairs identification card and military identification card from the Armed Forced of the Philippines, establishing that the appellant was a member of the reserves. While these documents confirm the appellant's status as a Filipino veteran, they otherwise fail to satisfy the requirements of 38 C.F.R. § 3.203 as they are not official documents of the appropriate United States service department. As such, they may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including the one-time payment from the Filipino Veterans Equity Compensation Fund. Moreover, in February 2010, based on the aforementioned documents, as well information gleaned from his March 2009 VA Form 21-4138(CF), the RO sought certification of the appellant's service from the NPRC: In March 2010, the NPRC confirmed 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 certification is binding on VA, and VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet. App. 530 (1992). In reaching a decision in this case, the appellant's contentions have not been overlooked. He continues to assert that he belonged to the organized guerrilla forces under US Command and has submitted additional evidence in support of his claim including a June 1954 Service Decorations certificate from the Office of the President of the Department of the Philippines and an Affidavit for Philippine Army Personnel dated in January 1948 that indicates he was inducted into the civilian guerrilla forces in September 1943, and that he was a member until September 1945. Of particular importance is a certification dated in October 2012 from the Armed Forces of the Philippines, Office of the Adjutant General, which indicates that the appellant was not carried in the Reconstructed Recognized Guerilla Roster (RRGR) of 1948. In December 2012, February 2013, and most recently in March 2013, the service department (via the NPRC) certified that no change was warranted in the prior negative service certification. The appellant has submitted no new information since the most recent March 2013 certification that would warrant additional inquiry to the service department. See Capellan v. Peake, 539 F.3d 1737 (Fed Cir. 2008). The NPRC has certified that the appellant had no qualifying service for VA purposes and, as noted previously, this verification is binding on VA such that VA has no authority to change or amend the finding. Duro supra. The proper course for the appellant, who 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 benefits administered by VA because VA is bound by the service department certifications. The appellant has submitted a photocopy of a news-clipping that he says discusses Almero v. INS, 18 F. 3d.757 (9th Cir. 1994). He argues that the Almero decision should be used to support his contention that VA must consider certifications of service by Philippine entities. However, the U.S. Court of Appeals for the Federal Circuit specifically rejected that argument, noting that the statutory provision on which the 9th Circuit relied in Almero was specific to immigration and naturalization issues, and did not apply to such issues as veteran's status. See also Fazon v. Brown, 9 Vet. App. 319 (1996) (distinguishing between veteran's status for purposed of naturalization and veteran's benefits). 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. He may not be considered a veteran for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. Therefore the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs