Citation Nr: 1319370	
Decision Date: 06/14/13    Archive Date: 06/21/13

DOCKET NO.  11-17 621	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

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


ATTORNEY FOR THE BOARD

G. Wasik, Counsel


INTRODUCTION

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

In March 2009 the appellant's husband filed a claim for a one-time payment from the Filipino Veterans Equity Compensation Fund.  In July 2009, the appellant's husband died before the RO issued a decision denying his claim.  In September 2009, the appellant requested that she be allowed to step in for the decedent, as his wife, for purpose of claiming his one-time payment from the Filipino Veterans Equity Compensation Fund.  In March 2010, the RO issued a decision denying the claim for a one-time payment from the Filipino Veterans Equity Compensation Fund and this appeal followed.

The record before the Board consists of a paper file and an electronic file known as Virtual VA.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  


FINDING OF FACT

The service department has certified that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II.


CONCLUSION OF LAW

The appellant's husband did not have the requisite service for entitlement to payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. § 101 (West 2002); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5 § 1002 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide 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.  

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, 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.  

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  


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 by the VCAA 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) (noting that, since veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of VCAA notice concerning proof of veteran status is necessary in most, if not all, cases).

In this case, the appellant was provided with all required notice in a January 2013 letter.  Although this letter was sent after the initial adjudication of the claim, the Board finds that there is no prejudice to the appellant in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the RO readjudicated the claim.  There is no indication or reason to believe that the ultimate decision of the RO on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time.  See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim).  

The record also shows that all indicated development has been completed in this case.  As set forth in more detail below, the service department has certified three different times that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II.  The initial negative certification was in July 2009.  New certifications were obtained when different identifying information was provided by the appellant regarding her husband.    See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008) (holding that the duty to assist requires that new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review).  In requesting the recertifications, the RO provided NPRC with additional pertinent information and evidence provided by the appellant.  As set forth in more detail below, in April 2013, the service department certified that no change was warranted in the prior negative certifications.  Since that third negative certification, the appellant has produced no additional information which would warrant a third request to NPRC.  

Accordingly, the Board will address the merits of the claim.

Factual Background

In March 2009, the appellant's husband submitted an application for a one-time payment from the Filipino Veterans Equity Compensation Fund.  He reported that he had served in "D CO. 1st Bn 2n Inf Regt BMD (F23)" from December 5, 1943, to June 27, 1946.  He provided the spelling of his name and the date of his birth, as well as his service number.

Upon receipt of the appellant's husband's application, the RO contacted the service department and requested verification of the claimed military service.  In its request, the RO included the information provided by the appellant's husband.  In November 2009, the National Personnel Records Center (NPRC) responded that the appellant had had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States.

A Death Certificate associated with the claims file demonstrates that the appellant's husband died in July 2009.  

In September 2009, the appellant submitted a statement indicating that she was continuing the claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund which was initiated by her husband and based on his military service.  She included additional documents which referenced the Veteran's military service.  None of these documents was prepared by the service department.  

In March 2010, the RO denied the appellant's claim citing to the fact that the NPRC had found no evidence that the appellant's spouse served as a member of the Commonwealth Army of the Philippines, including the recognized guerillas, in the service of the Armed Forces of the United States.  

In March 2013 and in April 2013, the NPRC certified that the appellant's husband had had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States.  These new certifications were conducted after different descriptive evidence was submitted by the appellant regarding her husband's military service.  The new information consisted of different birth dates and different dates of service for her husband.  

Legal Criteria

On February 17, 2009, the President signed the American Recovery and Reinvestment Act.  See Pub. L. No. 111-5 (2009).  The legislation included a provision for the creation of the Filipino Veterans Equity Compensation Fund, providing one time payments to "eligible persons" in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens.  Pub. L. No. 111-5 § 1002 (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 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 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 such service under conditions other than dishonorable.  Pub. L. No. 111-5 § 1002(d) (2009).  

When an "eligible person" dies, the law makes provision for payment from the Filipino Veterans Equity Compensation Fund to a surviving spouse, such as the appellant, provided that the Veteran had filed a claim for such benefits.  The Act further directs the Secretary to "administer the provisions of this section in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and shall apply the definitions in section 101 of such title in the administration of such provisions, except to the extent otherwise provided in this section."  

The Secretary 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, the Secretary has prescribed regulatory provisions governing the evidentiary requirements for establishing the requisite service for VA benefits purposes.  

That regulation provides that for the purpose of establishing entitlement to benefits, 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 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 discussed above, VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c) (2012).

The findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997).  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has reached the same conclusion.  See e.g. Soria v. Brown, 118 Fed. 3rd 747, 749 (Fed. Cir. 1997) (noting that "[b]ecause the United States Department of the Army refused to certify [the claimant's] alleged service in the Philippine Army, the VA properly refused to consider his claim for veterans' benefits based on that service.").  

Analysis

The Board finds the claim for a one-time payment from the Filipino Veterans Equity Compensation Fund must be denied.  As set forth above, the NPRC has, on three occasions, certified that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  VA is bound by that certification.  The appellant's claim is on the basis of her husband's military service.  The only way she was entitled to the requested onetime payment is if her husband had qualifying military service as set out under the statute.  He did not have such service.  As a result, the appellant's claim must be denied.  

The Board has carefully considered the documentation submitted by the appellant, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service.  The documents submitted by the appellant were not issued by the service department, nor do they contain the necessary information to establish entitlement to the benefit sought.  As such, those documents may not be accepted as verification of service for the purpose of establishing eligibility for benefits administered by the Secretary of VA, including the one-time payment from the Filipino Veterans Equity Compensation Fund.  In any event, the Board notes that the NPRC has considered the information contained in that documentation and nonetheless certified that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States.  Again, the Board is bound by this certification.  

As the service department has certified that the appellant's husband did not have the requisite service to qualify her for payment from the Filipino Veterans Equity Compensation Fund, the appeal must be denied.  


ORDER

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



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs