Citation Nr: 1320064	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  10-30 761	)	DATE
	)
	)

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 (FVEC).


ATTORNEY FOR THE BOARD

K. R. Fletcher, Counsel


INTRODUCTION

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decisional letter from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

The appellant was scheduled for a hearing before the Board at the RO in February 2013; he failed to report for the hearing and has not requested that it be rescheduled. 

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claim.  A review of the documents in the electronic file reveals that the documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

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 certified that the appellant 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.


CONCLUSION OF LAW

The criteria for obtaining a one-time payment from the FVEC are not met.  38 U.S.C.A. §§ 107 Note, 501(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)(1)  (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

As for the appellant's claim of basic eligibility for a one-time payment from the FVEC Fund, 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).

In this case, although the appellant was not provided with the required notification prior to the initial adjudication of his claim, the Board finds that no prejudice has resulted.  In the September 2009 notification letter, the RO explained that verification of military service was the responsibility of the NPRC and its findings were binding on VA.  See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 ("The Federal Circuit's decision in Soria recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive and binding on VA"); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  In a February 2012 letter, the RO again provided the appellant with the required notification.

Accordingly, the issue presented is solely one of statutory interpretation and the claim is barred as a matter of law.  See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim for a benefit to which the claimant is not entitled as a matter of law).

The Board observes that in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the Federal Circuit held (in the context of a Dependency and Indemnity Compensation claim), that where service department certification of a claimant's active service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department.  The Federal Circuit also held that it was a violation of VA's duty to assist not to request service department review of additional or new documents or evidence provided by an appellant concerning a veteran's active service after the initial service department certification.  See Capellan, 539 F.3d at 1380-81.  The Federal Circuit further held that the correct interpretation of the governing statutes and regulations requires that a claimant's new evidence be submitted and considered in connection with a request for "verification of service from the service department" pursuant to 38 C.F.R. § 3.203(c).  Id.  

Here, the RO has requested service department certification of the claimant's alleged active service on three occasions, and on each occasion has submitted the documentation provided by the appellant in the certification request, as expressly confirmed in a June 2010 statement of the case (SOC) and March 2012 Supplemental SOC (SSOC).  The most recent such certification request was completed in February 2012.  The June 2010 SOC and March 2012 SSOC clearly and expressly list these documents in their indices of evidence of record which was considered and included in the service department certification requests.  The stipulations set out in Capellan have been met.

Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund."  38 U.S.C.A. § 107 Note (West Supp. 2012).  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. 

For eligible persons who accept a payment from the FVEC, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . ."  However, nothing in the act "prohibit[s] 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."  Id.  

The law addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II.  The pertinent section 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; and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable.  38 U.S.C.A. § 107 Note (Supp. 2012).

For purposes of establishing entitlement to VA 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 under 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 the 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 does not meet the requirements of this section, the VA shall request verification of service from a service department.  38 C.F.R. § 3.203(c).

Here, the appellant submitted copies of a January 1946 Affidavit for Philippine Army Personnel and a May 2000 Certification from the Armed Forces of the Philippines Office of the Adjutant General, both of which ostensibly confirm his status as a Philippine veteran.  He also submitted copies of an October 1990 Application for Old Age Pension and his bank passbook.  However, none of these documents satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service in the United States Armed Forces: they are not an official document of the appropriate United States service department or NPRC.  Accordingly, these documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including one-time payment from the FVEC.

The appellant did not submit 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).

The RO submitted the pertinent information to the NPRC for verification.  The NPRC certified in August 2009, March 2010 and February 2012 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 has certified that he had no qualifying 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 any claimant 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).

Based upon the record in this case, the appellant had no qualifying service in order to meet the basic eligibility criteria for establishing entitlement, and one-time payment from the FVEC is not warranted.


ORDER

Entitlement to one-time payment from the FVEC is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs