Citation Nr: 1318932	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  12-19 350	)	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, based on substitution of the appellant.


WITNESSES AT HEARING ON APPEAL

The Appellant and her Daughter


ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

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).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. 

The decedent died in November 2010.  Effective October 10, 2008, the law was changed concerning substitution in the case of the death of a claimant.  The newly revised statute provides that, "If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion."  38 U.S.C.A. § 5121.  The surviving spouse, the appellant, was substituted as the claimant in this appeal by the RO.  The appellant received notice of the determination in March 2011.  Therefore, the Board may proceed to adjudicate the claim for FEVC based on substitution of the appellant.  


FINDING OF FACT

The claimant, who died after his claim for Filipino Veterans Equity Compensation Fund benefits was perfected, had no 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 criteria for a one-time payment from the Filipino Veterans Equity Compensation fund are not met.  38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.9, 3.40, 3.203 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  However, the United States Court of Appeals for Veterans Claims has held that when the law as mandated by statute, and not the evidence, is dispositive of the claim, the above provisions are not applicable. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002). 

Additionally, VA's General Counsel has held that there is no duty to notify a claimant where the claim cannot be substantiated, e.g., there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit.  VA's General Counsel also held that there is no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim.  VAOPGCPREC 5-2004.  As there is no legal entitlement to the benefits claimed, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim.  Thus, any deficiencies of notice or assistance are rendered moot.  See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). 

VA requested and obtained service department verification of the decedent's service.  Due to the fact that qualifying service and how it may be established are governed by law and regulations and because the service department's certification is binding, the Board's review is limited to interpreting the pertinent law and regulations.  Under the circumstances of this case, the Board finds that no additional VCAA notice or assistance is necessary. 

Evidence and Analysis

The appellant is requesting a one-time payment from the Filipino Veterans Equity Compensation Fund as the survivor of a claimant that had perfected an appeal for this benefit. 

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 to 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).


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 claim for veterans' benefits based on that service.  Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997). 

In support of a claim for Filipino Veterans Equity Compensation Fund compensation the claimant (now deceased) had submitted the following:

* a completed VA Form 21-4138 (CF) dated February 20, 2009, advising that the claimant's service number was [redacted], and that he served with Unit H Co Batute Inf Regt from September 1, 1944, to November 3, 1945; 
* a handwritten statement from the claimant dated in August, 2009, regarding his application for Filipino Veterans Equity Compensation Fund; and 
* an October, 2009, statement of service (VA Form 21-3101 (JF), in which the claimant reported that he had guerilla service with Unit H Co Batute Inf Regt from September 1, 1944, to November 3, 1945.

This evidence was submitted to the National Personnel Records Center (NPRC) for certification.  In November 2009, the NPRC certified that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces; and in a decision in January 2010 the RO denied the claimant's application for Filipino Veterans Equity Compensation Fund on the grounds that that the claimant had no served as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  

In June 2010 the claimant perfected an appeal of that decision.  He also submitted additional evidence and argument, including

* a photocopy of a roster of names from the Veterans Federation of the Philippines , including the claimant's name;
* a photocopy of a December 1945 Philippine Army enlistment/discharge record;
* an October 1997 Certification from the Armed Forces of the Philippines, Office of the Adjutant General, certifying that the claimant was a recognized guerilla and had joined the Natividad Regt BMA (F-23) on September 1, 1944; that the claimant had served with Unit H Co Batute Inf Regt from September 1, 1944, to November 3, 1945; and that the claimant had received arrearages pay for service from September 1, 1944, to January 31, 1945; 
* photocopies of several types of current identification;
* a January 2010 letter from the claimant expressing his disagreement with the denial of his claim for Filipino Veterans Equity Compensation Fund compensation; 
* a May 2010 joint affidavit from two persons stating that they knew that the claimant was a guerilla in the army of the Philippines, and that the claimant had fought against Japanese soldiers;
* a Certification, received by VA in June 2010, that the claimant was a member of a chapter of the VFP;
* a photocopy of a January 1972 letter from the Republic of the Philippines regarding back pay for guerilla service; and
* photocopies of bank share documents received by VA in September 2010

This evidence was also submitted to the NPRC for certification.  In September 2010, the NPRC again certified that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  

In November, 2010; prior to promulgation of a decision by the Board in the matter, the claimant died.  In January 2011 the appellant contacted VA regarding the claimant's death and to advise that she was the claimant's widow.  She submitted a copy of the claimant's death certificate and other post mortem documents, including burial receipts.  She also submitted a copy of her marriage certificate; a copy of the claimant's Philippines Veterans Affairs Office ID; and a copy of her own government ID; and requested that the claimant's Filipino Veterans Equity Compensation Fund claim be processed under her name.  See The Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008), codified at 38 U.S.C.A. § 5121A (relating to substitution in case of death of a claimant who dies on or after October 10, 2008).  

In March 2011 the RO issued a decision to the appellant denying the claim for Filipino Veterans Equity Compensation Fund.  The appellant then submitted the following documents.
 
* A new May 2011 joint affidavit from the May 2010 affiants, stating that they knew that the claimant was a guerilla in the army of the Philippines; that the claimant had fought against Japanese soldiers; and that the claimant had never been a Japanese supporter;
* another copy of a January 1972 letter from the Republic of the Philippines regarding back pay for guerilla service;
* a copy of the claimant's September 1990 application for old age pension with the Philippine Veterans Affairs office;
* a copy of her own December 2010 application for old age pension with the Philippine Veterans Affairs office, on which she noted that the claimant was a PVAO pensioner, and that his last unit of assignment was H Co Batute Inf Regt in January, 1946;
* a copy of an "Affidavit for Philippine Army Personnel" completed in January 1946, which notes that the claimant was a civilian guerilla;
* an April 2011 Certification from the General Headquarters, Armed Forces of the Philippines, Office of the Adjutant General, certifying that the claimant was a recognized guerilla and had joined the Natividad Regt BMA (F-23) on September 1, 1944; that the claimant had served with Unit H Co Batute Inf Regt from September 1, 1944, to November 3, 1945; and that the claimant had received arrearages pay for service from September 1, 1944, to January 31, 1945; 
* a copy of a May 2011 Certification from the Republic of the Philippines Department of National Defense, Philippine Veterans Affairs Office, advising that the claimant was a veteran of the Philippine Revolution/World War II; that the claimant had served with H Co Batute Inf Regt BMA from September 1944 to January 1946, and that the appellant was a pensioner; and 
* a photocopy of a bank shareholders document received by VA in July 2011.

This evidence was also submitted to the NPRC for certification.  In August 2011, the NPRC once again 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.  This finding is binding on VA for purposes of establishing service in the United States Armed Forces.  See Duro, 2 Vet. App. 530; Dacoron, 4 Vet. App. 115; Venturella, 10 Vet. App. 340.  

In November 2011 the appellant submitted a photocopy of a November 1989 welcome letter to the claimant from the American Legion, and a photocopy of a group of American Legionnaires, including the claimant.  As the American Legion (a nongovernmental entity) is not capable of verifying service in and or for the United States Armed Forces, this is not evidence of service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  See Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997) (providing that where the United States service department does not certify the claimant's alleged service in the Philippine Army, VA cannot consider his claim for veterans' benefits based on that service).  See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (providing, in essence, that remand is not warranted in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); 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).

In July 2012 the appellant perfected her appeal.

Although the appellant seeks to establish eligibility for Filipino Veterans Equity Compensation Fund compensation as the survivor of a member of the Philippine Commonwealth Army in the service of the United States Armed Forces, she has not submitted a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, or any other evidence issued by the service department that establishes the claimant's eligibility for the benefit.  The NPRC has duly considered the claimant's, and in turn the appellant's, application and evidence for this benefit and has repeatedly certified that the claimant had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas.  The Board is bound by those certifications.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the United States service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA).  As the claimant did not have the requisite service to qualify for a one-time payment from the Filipino Veterans Equity Compensation Fund, the appellant's claim for this benefit must be denied as a matter of law. 


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