Citation Nr: 1318938 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 12-24 374 ) 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. WITNESSES AT HEARING ON APPEAL Appellant and his grandson ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 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. In January 2013, the appellant testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In September 2009, the appellant filed a claim for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. 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 directs that VA 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). 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 F.3d 747 (Fed. Cir. 1997). Review of the record shows that the Service Department has searched for the appellant's records using incorrect dates. Specifically, the appellant identified his service on his September 2009 VA Form 21-4138(CF) as starting on October 17, 1943, and ending on May 1, 1945. Although the number "3" is somewhat obscured by printing on the form, the appellant repeated "17 October 1943" as his induction date on a typed page immediately following the form. However, when the forms were filled, the request for information about the appellant to the Service Department, VA Form 21-3101(JF), misidentified the appellant's dates of service as beginning on October 17, 1945, and ending on May 1, 1945. It appears as though the service department searched those misidentified dates and, in a VA Form 21-3101(JF) dated January 15, 2010, determined that the appellant has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Although it appears as though the RO attempted to correct this error in its subsequent request for information, it nonetheless still listed the appellant's date of service entry as April 13, 1943-not the October 17, 1943 date reported by the appellant. Notwithstanding that change in the RO's request, the service department again searched for the appellant using his dates of service as beginning on October 17, 1945, and ending on May 1, 1945, and found that no change was warranted in the prior negative certification. See VA Form 21-3101(JF) dated May 11, 2012. In light of the foregoing, remand is required in order to comply with the duty to assist the appellant. In that regard, the agency of original jurisdiction (AOJ) should request a search by the service department, using VA Form 21-3101(JF) or other appropriate means, to determine whether the appellant has qualifying service to warrant entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. The request issued to the Service Department should request a search for the appellant's service dates using October 17, 1943 as his date of entry into active duty, and May 1, 1945 as his date of separation from active duty, unless other dates are provided by the appellant. Accordingly, the case is REMANDED for the following action: (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. Request that the service department search for the appellant using October 17, 1943 as his date of entry into active duty, and May 1, 1945 as his date of separation from active duty, unless other dates are provided by the appellant. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the appellant's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the appellant should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. 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). _________________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).