Citation Nr: 1320208	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  10-31 563	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Whether the appellant is a veteran for the purpose of establishing entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.


REPRESENTATION

Appellant represented by:	American Legion


ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel





INTRODUCTION

The appellant alleges that he served with Philippine guerrilla units in the service of the United States Armed Forces during World War II.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decisional letter by the Manila Regional Office (RO) that denied the appellant's claim seeking compensation from the Filipino Veterans Equity Fund.  Because veteran status of the person seeking a VA benefit is a threshold requirement for establishing entitlement to such benefit, that is the matter before the Board.  In his July 2010 Substantive Appeal, the appellant requested a hearing before the Board; in September 2011, he withdrew the hearing request.  In June 2012 the Board remanded this matter for additional development.

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 service department 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 United States Armed Forces.


CONCLUSION OF LAW

The appellant is not a veteran, and is not eligible for one-time payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 107 (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012).




REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)
 
The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
 
In Palor v. Nicholson, 21 Vet. App. 325 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, in claims where it is necessary to first establish veteran status, proper VCAA notice must be tailored to also inform claimants of the information or evidence necessary to prove the element of veteran status, what information the appellant is responsible for providing, and what information VA will seek to obtain concerning that element.

A close review of the claims file found that the appellant was not advised of VA's duties to notify and assist in the development of his claim prior to the initial adjudication of this matter.  However, the Board finds that he is not prejudiced by such notice defect.  In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court reversed the case of Sanders v. Nicholson, 487 F.3d 881 (2007), which had held that any error in VCAA notice should be presumed prejudicial and that VA must always bear the burden of proving that such an error did not cause harm.  In reversing Sanders, the Supreme Court in essence held that - except for cases in which VA has failed to inform the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, and determinations on the issue of harmless error should be made on a case-by-case basis.  Shinseki, 129 S. Ct. at 1704-06.  The appellant has not alleged that he was prejudiced because he did not receive timely notice of what was needed to substantiate his claim.  The record reflects that based on information he provided in association with his February 2009 claim for benefits, the RO sought service department verification of his service, and based on service department certification that he did not have qualifying service, determined he is ineligible for VA benefits as a matter of law.  When an appellant is ineligible for VA benefits as a matter of law based on the service department's refusal to certify the appellant's service, he is not prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status. See Palor, 21 Vet. App. at 332-33 ("given the binding nature of the U.S. service department's certification . . . a remand for further development could not possibly change the outcome of the decision").
 
The RO sought certification of the appellant's military service and advised him of what documents he could submit to assist in the matter. There is no indication that information submitted by VA to the service department for the purposes of certifying his service was erroneous or incomplete.   The appellant has not identified or submitted any further evidence suggesting that re-certification of his service/ nonservice is necessary.  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim.

Factual Background

Initially, the Board notes that it has reviewed all the evidence in the appellant's claims file and in Virtual VA (VA's electronic data storage system).  Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record.  Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

In February 2009, the appellant submitted a VA Form 21-4138 to apply for a one-time payment from the Filipino Veterans Equity Compensation Fund.  He claimed that he had Phillipine guerilla service, and listed his name, Social Security number, date and place of birth, unit in which he served, dates of service, the names of his parents, and the name, address, and date of birth of his spouse.  He also provided his passport number and noted he was a U.S. Citizen.

In May 2009, the RO submitted the above information to the National Personnel Records Center (NPRC) for verification of the appellant's claimed service, and requested that they furnish any and all records that they might have for the appellant.  In September 2009, the NPRC certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.

The appellant then submitted the following documents in connection with his claim:

* A photocopy of his U.S. passport.
* A photocopy of an April 1977 Guerrilla Verification Slip, which listed his name, unit date of recognition, and noted that his name was in the Approved Revised Reconstructed Guerrilla Roster.
* A photocopy of certifications from the Philippine Veterans Affairs Office (PVAO), dated October 1985, July 1991, and August 1991, that the appellant was a veteran of World War II/Philippine Revolution on the basis that his name is carried in the Approved Revised Reconstructed Guerilla Roster of 1948.
* A photocopy of an affidavit by Benjamin S. Escano stating that he served with the appellant and can attest that the appellant was inducted into the guerilla service in October 1942.
* A photocopy of an approval for Old Age Pension from the PVAO in June 1993.
* A photocopy of a June 2010 certification from the Office of the Adjutant General which listed his unit, roster number, and date of recognition.

In August 2010, the RO sought re-certification of the appellant's service from the NPRC.  The information provided to the NPRC in May 2009 was provided again in this request, along with the additional information of the appellant's last grade/rank, additional units of assignment, and the file number of the Reconstructed Recognized Guerrilla Roster where the appellant's name was listed.  In September 2011 [sic], the NPRC 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.

           In February 2011, the RO sought recertification of the appellant's service from the NPRC, this time including an additional name under which the appellant may have served.  In April 2011, the NPRC replied that there was no change in their previous negative certification.

      In April 2011, the appellant submitted a statement indicating he was the recipient of the Philippine Veterans Educational Benefit (approved in January 1954).  He also submitted a photocopy of a certification from the PVAO, dated March 2011, which listed the unit with which the veteran served, his grade/rank, and noted that he was approved for old age pension, educational benefits, and veteran's preference.
      
      In July 2011 the RO again sought re-certification of the appellant's service from the NPRC based on the additional information received, including additional units of assignment and the affidavit of Benjamin Escano.  In August 2011, the NPRC responded that there was no change warranted in the prior negative service certification.
      
      In August 2011, the appellant submitted a statement indicating he was a life member of the Veterans Federation of the Philippines and provided his member identification number.  In September 2011, the appellant submitted a photocopy of his application for settlement of claims of Filipino Veterans under Republic Act No. 1889.

	As is noted above, in June 2012 this case was remanded by the Board for recertification of the appellant's alleged service based on new information provided, including all permutations of his name, all units of service identified, the name of his commanding officer, all dates of birth and dates of service.

In November 2012 and February 2013, the RO sought re-certification of the appellant's service from the NRPC, noting the additional information identified by the Board.  In December 2012 and March 2013, the NPRC noted that no change was warranted in the prior negative service certifications. 

Legal Criteria and Analysis

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."  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009).  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.
 
Section 1002 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East During World War II.  Section 1002(c)(1) provides that the Secretary may make a payment from the compensation fund to an eligible person who, during the one-year period beginning on the date of the enactment of this Act, submits to the Secretary a claim for benefits under this section.  The application for the claim shall contain such information and evidence as the Secretary may require.  Section 1002(c)(2) provides that if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person.
 
Section 1002(d) 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 (59 Stat. 538); and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable.
 
For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . ."  However, nothing in this 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."
 
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).

The appellant has not submitted any documents that meet the first requirement of 38 C.F.R. § 3.203(a).  He has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the U.S. Armed Forces.  Therefore, VA sought service department verification of whether the appellant served in the U.S. Armed Forces in the Philippines.  In September 2009, September 2010, April 2011, August 2011, December 2012, and March 2013, based on information in his claim and in documents he subsequently submitted, the service department (via the NPRC) certified it had no record of the appellant serving as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.
While the appellant has provided ample evidence to show that he is a veteran of the Philippine Army, he has not provided sufficient evidence to establish that such service was in the service of the United States Armed Forces. The documents certifying that he is a veteran of World War II were provided by the Philippine Veterans Affairs Office, not the U.S. service department, and are therefore inadequate to establish veteran status.  See 38 C.F.R. § 3.203(a).  Conversely, certifications from the service department (via the NPRC) are binding on VA, and VA has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet. App. 530 (1992).  If a change of service department certification is what the appellant seeks, his remedy lies with the service department and not with VA.

The appellant has provided no further evidence or information (since the March 2013 certification) that would warrant a request for re-certification of his service/nonservice by the service department and VA must abide by the service department's certification.  See Capellan v. Peake, 539 F.3d 1737 (Fed Cir. 2008); Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).  Accordingly, the Board finds the appellant did not have the requisite service and is not a veteran so as to establish eligibility for compensation from the Filipino Veterans Equity Compensation Fund. Since the law is dispositive in this matter, the claim must be denied because of the absence of legal merit or entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

The appeal to establish veteran status for the appellant and his entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied.


____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs