Citation Nr: 1318432	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  10-40 722	)	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.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and IS


ATTORNEY FOR THE BOARD

John Kitlas, Counsel
INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund. 

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).

The Appellant provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2013.  A transcript of this hearing has been associated with the Appellant's VA claims folder.  Further, it is noted that the Appellant waived the right to have representation at this hearing.  Transcript p. 2.


FINDINGS OF FACT

The service department 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 United States Armed Forces during World War II.


CONCLUSION OF LAW

The Appellant does not have the requisite service to establish entitlement to payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. 
§§ 101, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

Preliminary Matters

Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied under the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

The Board's action below had denied the claimed benefit as a matter of law.  In cases where the law, and not the evidence, is dispositive, the VCAA is not for application.  Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 2-2004 (March 9, 2004).

Nonetheless, the Board finds the appellant has been afforded appropriate notice and assistance.  The record does not reflect the Appellant was provided with VCAA-compliant notification prior to the May 2009 decision that is the subject of this appeal.  However, she was subsequently sent VCAA-compliant notification via an October 2011 letter, followed by readjudication of the appeal via Supplemental Statements of the Case (SSOCs) promulgated in December 2011, February 2012, and June 2012.  This development which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  

In pertinent part, the October 2011 letter informed the Appellant of the criteria necessary for a one-time payment from the Filipino Veterans Equity Compensation Fund, what information and evidence she must submit, what information and evidence will be obtained by VA, as well as the information and evidence used by VA to determine disability rating(s) and effective date(s).  Therefore, the Board finds that the Appellant was notified and aware of the evidence needed to substantiate this appeal and the avenues through which she might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.  In any event, the Appellant has not demonstrated any prejudice with regard to the content or timing of any notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

The record further reflects that VA has made reasonable efforts to assist the Appellant in the development of this claim.  For example, in response to documents submitted by the Appellant, the RO obtained verification through the National Personnel Records Center (NPRC) on multiple occasions regarding her purported military service.  Further, the Appellant has had the opportunity to present evidence and argument in support of her appeal, to include at the January 2013 Board hearing.  Nothing indicates she has identified the existence of any relevant evidence that has not been obtained or requested.  

The Board also notes, in regard to the January 2013 hearing, that the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ asked questions to clarify the Appellant's contentions.  Further, the VLJ noted that resolution of this case was based upon the whether the Appellant had recognized service, and that VA was bound by the determination of the NPRC on this matter.  See Transcript pp. 4-5, 9.  As such, the VLJ did discuss the bases of the prior determinations and the elements that were lacking to substantiate the Appellant's appeal.  Moreover, the Appellant has not contended that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has she identified any prejudice in the conduct of this hearing.  As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. 

Finally, the Board notes that the resolution of this case involves the nature of the Appellant's purported military service.  In short, it is not the type of case in which a medical examination and/or opinion is necessary to resolve.

In view of the foregoing, the Board finds that VA's duty to assist has been met.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  


Legal Criteria and Analysis

The Appellant essentially contends, to include at her January 2013 Board hearing, that she is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund, based upon her military service in World War II, and has provided details regarding the circumstances thereof.  

The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt.  Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941).  Current law, however, provides that many of those who served in the Philippine Islands during World War II did not have qualifying active service for the purpose of receiving VA benefits. 38 U.S.C.A. § 107  (West 2002).

The particular benefit claimed originated on February 17, 2009 with the American Recovery  and Reinvestment Act, to promote job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization.  Pub. L. No. 111-5, 123 Stat. 115 (2009).  That legislation established the Filipino Veterans Equity Compensation Fund, which provides one-time payments to eligible persons.  Pub. L. No. 111-5, 
§ 1002, 123 Stat. 115  (2009).

An eligible person is defined as any person who served 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 dated July 26, 1941.  That includes any person who served in military units such as 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; and any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ).  Additionally, the person must have been discharged or released from service under conditions other than dishonorable.  Pub. L. No. 111-5, § 1002(d), 123 Stat. 115  (2009).

The Act further directs VA to administer the provisions in a manner consistent with applicable provisions of Title 38 of the United States Code, and other provisions of law, and shall apply the definitions in 38 U.S.C.A. § 101 in the administration of the provisions, except to the extent otherwise provided.  Pub. L. No. 111-5, § 1002, 123 Stat. 115  (2009).  Specifically, VA is authorized by statute to prescribe regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits' under the laws administered by VA.  38 U.S.C.A. § 501(a)(1) (West 2002).  Pursuant to that authority, regulatory guidelines have been developed governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. 

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 his or her claim for certain veteran's benefits based on that service.  Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997). 

In this case, the Appellant has submitted multiple documents in support of her claim, to include affidavits from individuals attesting to her service.  Further, she has submitted documents from the Government of the Philippines documenting military service.  For example, she submitted an Affidavit for Philippine Army Personnel indicating service as a civilian guerilla from October 1942 to January 1946.  She also submitted a Certificate of Discharge indicating she was discharged as a civilian guerilla in May 1943.  Other documents include one from the Headquarters Philippine Army Loyalty Status Board; Special Orders dated in May 1945; and a Monthly Roster dated in October 1942.

The Board has carefully considered the documentation submitted by the Appellant, but notes that it fails to satisfy the requirements as acceptable proof of service.  38 C.F.R. § 3.203 (2013).  The documents submitted by the Appellant were not issued by the United States service department, nor do they contain the necessary information to establish entitlement to the benefit sought.  Therefore, those documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the Filipino Veterans Equity Compensation Fund.  The Board is bound by the United States service department's certification.  Capellan v. Peake, 539 F.3d 1373  Fed. Cir. 2008). (If the service department does not verify the claimed service, the only recourse lies with the service department, not VA).  Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits administered by VA.

The Board further notes that the NPRC has certified on multiple occasions 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.  Such certifications were issued in April 1951, August 2010, November 2011, February 2012, and April 2012.  VA is bound by that certification.  Moreover, the record reflects the additional requests were based upon the information provided by the Appellant and supporting documentation regarding her purported military service, as well as alternate spellings of her name.  She has not provided any information indicating that further efforts are warranted.

For these reasons, the Board must find that the Appellant does not have the requisite service to qualify for a one-time payment from the Filipino Veterans Equity Compensation Fund.  Therefore, her claim for benefits must be denied. 

The Board is sympathetic to the Appellant, and does not question the sincerity of her belief that she 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

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs