Citation Nr: 1318562 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 11-13 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant meets the basic eligibility requirements for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In November 2012 the Board remanded the claim for additional development. 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 verified that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. CONCLUSION OF LAW The service requirements for eligibility to a one-time payment from the FVEC fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance 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 in cases where the appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated to inform the appellant of the information or evidence necessary to prove the element of veteran status. Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) (as veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of notice concerning proof of veteran status is necessary in most, if not all, cases). Here, although the appellant was not provided with the required notification prior to the initial adjudication of the claim, the Board finds that no prejudice has resulted. In the May 2010 decisional letter, the RO explained that verification of military service was the responsibility of the National Personnel Records Center (NPRC) and its findings were binding on VA. Further, in the April 2011 statement of the case and in a December 2012 RO letter the appellant was notified of what was required to prove entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund (the Fund), to include notice of 38 C.F.R. § 3.203 and the American Recovery and Reinvestment Act (the Act). In any event, any VCAA notification error is non-prejudicial as the appellant is not entitled to benefit as a matter of law. See Valiao v. Principi, 17 Vet. App. 229 (2003); see also Palor, 21 Vet. App. at 332-33 ("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 [the service department's] refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error."). In November 2012 the Board remanded this claim. The Board directed that the RO attempt to verify the appellant's claimed service after providing the service department with the supporting documentation which the appellant had submitted. This was done on December 2012, with a response received in March 2013. See National Personnel Records Center responses (VA Forms 21-3101 (JF)), dated in March 2013. Under the circumstances, the Board finds that there has been substantial compliance with its remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. The Board therefore finds no prejudice toward the appellant in proceeding with the adjudication of his claim. II. Filipino Veterans Equity Compensation (FVEC) Fund The appellant asserts that she had recognized guerilla service in the Commonwealth Army of the Philippines in the service of the United States Armed Forces of the Far East (U.S.A.F.F.E.) and is therefore an eligible claimant. Specifically, she asserts that she had such service from December 1942 to December 1945. According to a statement submitted in August 2009, the appellant indicated that she served with "A Co., 1st Bn 2nd 11th Div" from December 1942 to December 5, 1945. The appellant has submitted a number of documents in support of her claim, including, but not limited to, an October 1991 application for an old age pension; a December 1998 list of individuals purported to have been in BOBLMEN and WAS units; a January 1999 affidavit from VP reflecting that the appellant served in a BOLOMEN unit; and affidavits from service comrades (JG and MC, July 1998; LA and PS, September 2010; and BA and FD, September 2010) reflecting that the appellant had served in a guerrilla unit during World War II. 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 this 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. Under 38 C.F.R. § 3.203(a), VA may accept evidence of service submitted by a claimant, such as a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate U.S. service department under the following conditions: (1) the evidence is a document issued by the United States 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). 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. 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, Soria. By way of history, in August 2009 VA received the appellant's timely claim for a one-time payment from the Fund as a result of her service, based on claimed service with "A Co., 1st Bn 2nd 11th Div" from December 1942 to December 5, 1945. In May 2010 the RO denied the claim, after it determined that she had no qualifying service. At that time, the RO had a response from the National Personnel Records Center (NPRC), dated in February 2010, which indicated that a search of the appellant's name revealed "no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces." A notice of disagreement was received in September 2010, a statement of the case was issued in April 2011, and a substantive appeal was received in May 2011. Based on additional documentation received in support of her claim submitted subsequent to the May 2010 RO denial, in November 2012 the Board remanded the case and requested that the RO seek re-certification of the appellant's service from the NPRC. In December 2012 the RO sought certification of the appellant's service from the National Personnel Records Center (NPRC) and requested that they "furnish complete AGUZ Form 632 and furnish all extracts of Form 23 executed prior to and subsequent to 06-30-46." The response from NPRC in March 2013 was that no change was warranted in the prior negative service certification. The appellant has provided no further pertinent evidence (since the March 2013 certification) that would warrant another request for re-certification of her service. In this regard, the Board notes that in December 2012 VA received a document submitted by the appellant that was already of record and considered in prior certifications from the NPRC. In summary, certifications from the NPRC dated in February 2010 and March 2013 show 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. The NPRC made those certifications after considering the information provided by the appellant, to include multiple military units and several variations of her name. See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008). 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). All of the documentation submitted by the appellant fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department. As such, those documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including compensation from the FVEC Fund. The NPRC has certified that the appellant had no qualifying NPRC service. 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). 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. This department is bound to follow the certifications by the service departments with jurisdiction over United States military records. 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 Legal entitlement to the one-time payment from the FVEC Fund is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs