Citation Nr: 1318613 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 10-01 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether there is new and material evidence to reopen a claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. 2. Entitlement to a one-time payment from the FVEC Fund. ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines, denying the Appellant's claim of entitlement to a one-time payment from the FVEC Fund. Records however show the Director of the Compensation and Pension (C&P) Service previously had determined in years past, in March 1977, that this appellant had forfeited all rights, claims and benefits to which he might otherwise have been entitled under the laws administered by VA because he had aided an enemy of the United States. So irrespective of what the RO decided concerning his now claimed entitlement to the one-time payment from the FVEC fund, the Board first must make the threshold preliminary determination of whether there is the required new and material evidence since that earlier decision allowing the reopening of his claim inasmuch as that prior decision concluded he had forfeited any potential entitlement to VA benefits of any sort, so seemingly including the one-time payment from the FVEC fund that is now at issue. The Board must make this threshold preliminary determination, before proceeding further, because this initial determination affects the Board's jurisdiction to consider the claim on its underlying merits. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). See also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Appellant's previously and finally denied claims); Butler v. Brown, 9 Vet. App. 167, 171 (1996); and VAOPGCPREC 05-92 (March 4, 1992). Unlike the RO concluded, however, the Board finds there is indeed new and material evidence concerning this claim, so it is being reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). But rather than immediately readjudicating this claim on their underlying merits, the Board instead is then remanding this claim to the RO via the Appeals Management Center (AMC) for further development and consideration. Please also 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). FINDINGS OF FACT 1. In an August 1976 letter, the RO informed the Appellant that his claim was being sent to the Director of the C&P Service for a determination of whether forfeiture was declarable against him under 38 U.S.C. § 3504 (1976). 2. In a subsequent unappealed March 1977 decision, the Director of the C&P Service determined the Appellant had forfeited all rights, claims and benefits to which he might otherwise have been entitled under the laws administered by VA because he had aided an enemy of the United States. 3. Additional evidence since received, however, has not been previously considered, is not cumulative or redundant of evidence that has been, and by itself or when considered with the previous evidence of record relates to unestablished facts necessary to substantiate the claim now at issue and raises a reasonable possibility of substantiating it. CONCLUSIONS OF LAW 1. The March 1977 decision by the Director of the C&P Service, since not appealed, is a final and binding decision based on the evidence then of record. 38 U.S.C. § 3504 (1976). 38 U.S.C.A. §§ 6104, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 3.900, 3.902, 20.200, 20.1103 (2012). 2. But there is new and material evidence since that decision to reopen the claim, including of entitlement to a one-time payment from the FVEC Fund. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The VCAA, codified in part at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created and codified in part at 38 C.F.R. § 3.159. The VCAA eliminated the well-grounded claim requirement and enhanced VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim, including in terms of apprising the claimant of whose specific responsibility, his versus VA's, it is for obtaining this supporting evidence. Also, ideally, VCAA notice should be provided prior to initially adjudicating a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). As well, it should advise the claimant of all elements of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Here, though, since the Board is reopening the claim, and then further developing it on remand before readjudicating it on its underlying merits, there is no need to discuss at this point whether there has been compliance with the duty-to-notify-and-assist provisions of the VCAA. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 197 (2002). This is better determined once the additional development of the claim has been completed on remand. Moreover, since the Board is reopening the claim, there is no need to discuss whether there has been compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006), including especially in terms of notifying the Appellant of the evidence necessary to substantiate the element or elements of the claim that were found insufficient in the previous denial. Kent, 20 Vet. App. at 10-11; see also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial). This is because the Board is reopening the claim, regardless, so irrespective of any Kent concerns. Governing Statutes, Regulations and Precedent Cases Regarding Petitions to Reopen Previously Denied, Unappealed, Claims Because in the prior March 1977 decision the Director of the C&P Service determined the Appellant had forfeited all rights, claims and benefits to which he might otherwise have been entitled under the laws administered by VA, so benefits of any sort provided by the agency, and since he did not initiate, much less perfect, an appeal of that earlier decision, it is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. If, however, there is new and material evidence since that decision, the Board must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. In making this determination of whether there is new and material evidence to reopen the claim, the Board considers the evidence submitted or otherwise obtained since the last final and binding denial of the claim, irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If VA determines there is new and material evidence, it may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been satisfied. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000)). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). As already explained, in determining whether evidence is new and material, VA must review all of the evidence received since the last final and binding decision to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). And for the limited purpose of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence in question will be presumed credible. See Justus v. Principi, 3 Vet. App. 510 (1992). See also Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine continues to be binding precedent). This presumption, however, only applies when making a determination as to whether the evidence in question is new and material. It does not also apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim. Essentially, then, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or to blindly accept as true assertions that are beyond the competence of the person making them). Analysis The evidence of record at the time of the March 1977 decision included the Appellant's service information, service records, a February 1946 affidavit by A.B.D., and the Appellant's affidavits during his period of service. The service records reflect the Appellant provided affidavits in November 1945 and February 1946 indicating a history of service with the Combat Company of the 73rd Infantry, 71st Infantry Division of the USAFFE from August 1941 to May 1942, prisoner of war (POW) status from May 1942 to January 1943, service in the Bureau of Constabulary (BC) from January 1943 to November 1944, and service with the 6th Replacement Battalion of the Philippine Army in November 1945. He was provided an examination in November 1945 and a separation examination in March 1946 as a member of 6th Replacement Battalion of the Philippine Army. Additional service information reflects that he served as a member of the BC in 1943 and 1944 as a private, corporal, patrolman and sergeant. A February 1946 affidavit by A.B.D., attested that he was a regimental officer of the 75th Infantry when the Appellant reported to the Regimental Intelligence Office of the 75th Infantry in December 1944. He explained that, as a BC of the Japanese-sponsored government, the Appellant was investigated, found to be nonhostile and loyal, and was advised to go home on December 1944 and to restrict himself within the vicinity of his place of residence. Inquiries into the Appellant's service in July 1975 and March 1976 reflect dates of service noted from December 1941 to March 1946 with the Combat Company of the 73rd Infantry, 71st division of the Philippine army. Character of separation or discharge was unknown. In a September 1976 statement, the Appellant essentially disputed the proposed forfeiture of all rights, claims and benefits to which he might otherwise have been entitled under the laws administered by VA, asserting he was a POW and forced to fight with the BC from which he escaped an rejoined the Philippine Army. The March 1977 Forfeiture Decision by the Director of the C&P Service explained that the Appellant, as a member of the BC, was admittedly involved in the overall efforts of the Japanese military to defeat the United States and its allies. The decision also found that membership in the BC had been held to constitute prima facie evidence of rendering assistance to an enemy of the United States and its allies, and that it was understood that all members of the BC who underwent academy training, as the Appellant did, were required to take an oath of allegiance to the Imperial Japanese Government. The additional evidence received since that March 1977 decision includes the Appellant's statements, copies of the February 1946 affidavit by A.B.D., and additional service records. In various statements, the Veteran continued to reiterate his prior arguments of being a POW of the Japanese Imperial Forces and being forcibly handpicked to serve in the BC against his will. A certificate of surrender, dated in May 1942, indicates he was ordered to surrender to the Japanese Forces. Additional service information includes a processing and identification slip, dated in November 1945, for service in the 6th Replacement Battalion of the Philippine Army of the United States Army Forces, Pacific. A March 1946 Special Order was submitted indicating that, effective March 1946, he was discharged from active service and that his separation would, in no way, prejudice his right to any arrears in pay that may be legally due him. In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), albeit in the service-connection context, the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant the claim. Id., at 1363. Also, since the May 2009 decision from which this appeal ensued, the lower U. S. Court of Appeals for Veterans Claims (Court/CAVC) decided the case of Shade v. Shinseki, 24 Vet. App. 110 (2010). In Shade, the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id., at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist, which might raise a reasonable possibility of substantiating the claim. In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a "low threshold" for reopening a claim, one not requiring the submission of evidence that is new, material, and raises a reasonable possibility of substantiating the claim. That is to say, there are two, not three, requirements for reopening a claim. In light of these precedent cases, the Board finds that the newly-received evidence, when considered in conjunction with the previous evidence of record, presents a more complete picture of the circumstances of the Appellant's military service and relates to unestablished facts necessary to substantiate his claim for entitlement to a one-time payment from the FVEC Fund. In particular, this evidence includes the additional service information not previously of record such as the May 1942 certificate of surrender to the Japanese Forces, the November 1945 processing and identification slip, service in the 6th Replacement Battalion of the Philippine Army of the United States Army Forces, Pacific, and the March 1946 Special Order demonstrating that, effective March 1946, he was discharged from active service and that his separation would, in no way, prejudice his right to any arrears in pay that may have been legally due him. Therefore, the claim is reopened. See 38 C.F.R. § 3.156(a). ORDER As there is new and material evidence concerning the circumstances and character of the appellant's service, his derivative claim of entitlement to a one-time payment from the FVEC Fund is reopened, albeit subject to the further development of this claim on remand. REMAND Although the Board sincerely regrets the further delay that inevitably will result from remanding, rather than immediately adjudicating, this claim, it is necessary to ensure the claim is fully developed and receives all due consideration. The duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. Under the American Recovery and Reinvestment Act, certain Philippine Veterans are entitled to a one-time payment from the FVEC Fund. 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. If an eligible person accepts 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 the Act. Under Section 1002(d), an eligible person is (1) any person who served either (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 under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). 38 C.F.R. § 3.41 (a)(2) also recognizes Philippine service as including escape from POW status. For the purpose of establishing evidence of service, 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 VA the document is genuine and the information contained on it is accurate. 38 C.F.R. § 3.203(a). Where service department certification is required, findings by the service department verifying a person's service are binding on VA. 38 C.F.R. § 3.41. See, e.g., Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The proper course for an 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. (1994), overruled on other grounds, D'Amico v. West, 209 F.3d 1322, 1325 (Fed. Cir. 2000). Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is insufficient for VA benefits from the U. S. Treasury. The law provides that any person shown by evidence satisfactory to the Secretary to be guilty of, in part, a treasonable act shall forfeit all accrued or future gratuitous benefits under laws administered by the Secretary. 38 U.S.C.A. § 6104(a) (West 2002); 38 C.F.R. § 3.902(b) (2012). A treasonable act is defined as an act of mutiny, treason, sabotage or rendering assistance to an enemy of the United States or of its allies. 38 C.F.R. § 3.902(a). Service records reflect the Appellant provided affidavits in November 1945 and February 1946 indicating a history of service with the Combat Company of the 73rd Infantry, 71st Infantry Division of the USAFFE from August 1941 to May 1942, POW status from May 1942 to January 1943, service in the BC from January 1943 to November 1945, work as a civilian farmer from November 1944 to August 1945 and service in the 6th Replacement Battalion of the Philippine Army in November 1945 In the affidavits, the Appellant also indicated that as a POW he was drafted into the BC and tried to find a means of escape until he was finally able to in November 1944. The affidavits also indicate he was provided military pay as a member of the USAFFE from November 1945 to January 1946, at which time he was a sergeant, and that he was employed with the BC from January 1943 to November 1944 as under the Japanese Military Administration, Japanese Government, Japanese-controlled civil or puppet government or firm dealing with Japanese. He was provided an examination in November 1945 as a member of the 6th Replacement Battalion of the Philippine Army and was found to be mentally and physically qualified for service in the Army of the Philippines. He was provided a separation examination in March 1946 with regards to separation from the Philippine Army. Additional service information reflects the Appellant served as a member of the BC in 1943 and 1944 as a private, corporal, patrolman and sergeant. A certificate of surrender, dated in May 1942 indicates he was ordered to surrender to the Japanese Forces. There is a processing and identification slip, dated in November 1945 for service in the 6th Replacement Battalion of the Philippine Army of the United States Army Forces, Pacific. In addition a March 1946 Special Order was submitted indicating that, effective March 1946, he was discharged from active service and that his separation would, in no way, prejudice his right to any arrears in pay that may be legally due him. A February 1946 affidavit by A.B.D., of the 2nd Lt. Infantry of the Philippine Army, reflects that he reportedly was a regimental officer of the 75th Infantry when the Appellant reported to the Regimental Intelligence Office of the 75th Infantry in December 1944. He stated that the Appellant, being a BC of the Japanese-sponsored government was investigated and found to be nonhostile and loyal as evidenced by his friendly attitude toward the "mountain authorities" and he made a number of contacts with the "guerrillereos" in the hills. He also stated that the Appellant was placed under observation for a couple of weeks in the Regimental Intelligence Headquarters and, in no way, showed a very satisfactory behavior. A.B.D. indicated the Appellant and was advised to go home in December 1944 and instructed to restrict himself within the vicinity of his place of residence. Inquiries into the Appellant's service in July 1975 and March 1976 reflect dates of service noted from December 1941 to March 1946 with the Combat Company of the 73rd Infantry, 71st division of the Philippine army. Character of separation or discharge was unknown. In a September 1976 statement, the Appellant disputed the proposed forfeiture of all rights, claims and benefits to which he might otherwise have been entitled under the laws administered by VA. He alleged he was ordered to surrendered to the Japanese Army, was put in a concentration camp and forced to join the BC, that he received discharge papers in November 1944, returned to civilian life, escaped the enemy-occupied town and reported to the Commanding Officer of the Regimental Intelligence Section of the 75th Infantry Regiment in December 1944. He said he was processed at an Army Casual Camp and, in March 1946, was honorably discharged from military service. In various statements presented during the pendency of his current appeal, the Appellant continued to reiterate his prior arguments of being a POW of the Japanese Imperial Forces and being forcibly handpicked to serve in the BC against his will. It does not appear, however, that his dates of service, verification of service or character of discharge were obtained from the service department. While the March 1977 notice of the forfeiture decision stated that the service department records disclosed he had no recognized guerilla service, the Board does not find any confirmation of this fact within the records associated with the claims file. Significantly, the March 1977 decision found the Appellant's service in Japanese Imperial Government in violation of the forfeiture laws in 38 U.S.C.A. § 3504 (1976). See 38 U.S.C.A. § 6104. The Board observes, however, there also is evidence of his surrender to the Japanese forces prior to that service with the BC, affidavits in his service records indicating he was a POW, and evidence of reenlistment in and discharge from the Philippine Army following service with the BC. Therefore a remand is necessary to obtain the relevant information regarding his service, including verification of his dates of service, verification of service with recognized guerrilla service or other recognized service and the character of his discharge. Accordingly, the claim is REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the National Personnel Records Center (NPRC) or other appropriate source, including service department, to verify the following: (a). The dates of the Appellant's active service. (b). Whether, based on the service information of record to date, the Appellant had any recognized guerrilla service or other recognized service of the type necessary to qualify for a one-time payment from the FVEC Fund. (c). The character of the Appellant's discharge from service. 2. Then readjudicate this claim on its underlying merits in light of this and all other additional evidence. If this claim continues to be denied, send the Appellant a supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The appellant has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs