Citation Nr: 1320689 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 10-42 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Eligibility for the one-time payment for the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The claimant has no recognized service. This appeal to the Board of Veterans' Appeals (Board) is from a January 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 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 claimant 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 requirements for eligibility to a one-time payment from the FEVC fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act of 2009, Pub.L. No. 111-5, § 1002, 123 Stat. 115; 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This case relates to eligibility for a one-time payment from the FVEC fund, which is governed by the American Recovery and Reinvestment Act of 2009. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where the claimant 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) ("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."); Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008) (noting 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 to be submitted to the service department for review). In this case, the claimant was provided with the required notification in September 2012. While this notification was after the initial adjudication of the claim, in January 2010, after the notification the appellant's claim was again adjudicated, in December 2012, remanded by the Board in February 2013, and again adjudicated in April 2013. Moreover, in this case the law, not the facts, is dispositive of this appeal, and the duties to notify and assist imposed by the VCAA are inapplicable to this claim. See Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 2-2004 (March 9, 2004); see also 38 C.F.R. § 3.159 (d) (noting VA will refrain from or discontinue providing assistance in obtaining evidence when the application indicates there is no reasonable possibility that assistance would substantiate the claim, including circumstances where the claimant is ineligible for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility). As set forth in more detail below, the service department has certified that the claimant 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. VA is bound by this certification. 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 light of the binding certification, any VCAA error is non-prejudicial as the claimant is not entitled to the benefit as a matter of law. See Valiao v. Principi, 17 Vet. App. 229, 232 (2003); see also Palor, 21 Vet. App. at 332 ("Therefore, in assessing whether the appellant was prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status, the Court can conclude only that because the appellant is currently ineligible for VA benefits as a matter of law based on the [the service department's] refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error."). Based on an April 2013 NPRC service verification response and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its February 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Law and Analysis The claimant seeks entitlement to a one-time payment from the FVEC Fund based upon his service in the Philippines during World War II. By way of history, during World War II, various military units of the Commonwealth of the Philippines were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Pursuant to the American Recovery and Reinvestment Act of 2009, Congress established the "Filipino Veterans Equity Compensation Fund" (FVEC fund) and authorized VA to make one-time payments from the fund to eligible persons who submitted a claim within the one-year period beginning on the date of enactment. Pub.L. No. 111-5, § 1002, 123 Stat. 115. The act defined the term "eligible person" as 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. Under 38 C.F.R. § 3.203(a), 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. When the claimant does not submit evidence of service that meets the requirements of 38 C.F.R. § 3.203(a), VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c) (2012). In this case, the threshold question for entitlement to the one-time payment under the FVEC is whether the claimant has qualifying service for VA purposes. The claimant contends he served with the United States Armed Forces, specifically in the Commonwealth of the Philippines in an organized gorilla force. He asserts that the various service verification records represent sufficient proof of his service. In that regard, a February 1946 "Enlistment Record" noted service in "Guerilla Activities" from September 1, 1944 to February 23, 1946, and with the remarks that on February 23, 1946, an individual with the same name as the claimant had "separation from active duty." A February 23, 1946 discharge document from the Commonwealth of the Philippines, Philippine Army, indicated that an individual with the same name as the claimant enlisted on September 1, 1944 with "L" Co. 3rd Prov. 2nd Pangasinan Regt. An Affidavit for Philippine Army Personnel indicated that an individual with a different middle name from the claimant documented service in the "2" Co., 2nd Bn., Pang. Regt., which was noted to be a civilian guerilla force. The noted service dates were from September 1, 1944 to February 25, 1946. The document also discussed that the claimant's unit had been attached to one or another of two American units from July 1945 to February 1946. A January 1982 Certification indicated that an individual with a different middle initial from the claimant joined the guerilla roster, but his name was not carried in the Approved Revised Reconstructed Grla Roster (GVS). A December 1990 Application for Old Age Pension (Veteran) from the Philippine Veterans Affairs Office indicated that an individual with the same name as the claimant indicated separation from guerrilla forces in World War II as February 28, 1946. Service was listed as having been in "L" Company, 2nd Battalion, 3rd Pang Regiment. A January 1998 letter from the Republic of the Philippines, Department of National Defense found that an individual with the same name as the claimant served with the "2" Co. 2nd Bn. Pang. Regt. A July 1999 memorandum from the Department of National Defense Military Service Board concluded that an individual with a different middle initial than the claimant was a confirmed military veteran. A September 2010 Joint Affidavit included the representations of two individuals that while records noted two different places of birth for the individual(s) in the documented records (Villasis, Pangasinan and San Isidro Lupao, Nueva Ecija) were for the same individual. Another September 2010 Joint Affidavit included the representation of two individuals that notations of a middle initial of "F" and a middle initial of "P" were for the same individual. In addition to the foregoing, the RO has sought verification of service from the NPRC on several occasions. In November 2009, the RO sought verification of service in "L" Co 3rd Prov 2nd Pangasinana Regt" from September 1, 1944 to February 23, 1946. In a December 2009 response, the NPRC found 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 June 2010, the RO again sought verification of service from the NPRC. This time, the request listed service in "J" Co 12th Bn 3rd PR and "L" Co 3rd Prov 2nd Pangasinan Regt. The request also listed other names under which the individual might have served and a new separation date of February 25, 1946. The August 2010 response from the NPRC was the same as in December 2009. In September 2012, the RO sought verification from the NPRC for a third time. At that time, they listed three possible dates of separation from service: February 23, 1946; February 25, 1946; and February 28, 1946. They also listed additional names under which the individual might have served, multiple places of birth, and multiple possible units of service. In October 2012, the NPRC responded that no change was warranted in the prior negative service certification. Following the Board's February 2013 remand directives, the RO sought verification from the NPRC an additional time. On this occasion, the verification request included the possible places of birth, names of the individual, separation dates, and units of service listed on the documents of record. In April 2013, the NPRC responded that no change was warranted in the prior negative service certification. In sum, the NPRC has certified 4 times 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. The NPRC has duly considered the claimant's application for VA benefits and reviewed the above documentation of the claimant's service, and in response, certified that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas. The Board is not free to ignore the certification of the NPRC as 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); see Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department refuses to verify the claimed service, the applicant's only recourse lies within the service department, not with VA). Accordingly, the claimant may not be considered a Veteran for the purpose of establishing entitlement to the one-time payment from the FVEC Fund. In reaching this conclusion, the Board wishes to emphasize that it remains sympathetic to the claimant and does not question the sincerity of his belief that he is entitled to VA benefits. Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C.A. § 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). Accordingly, the claim for entitlement to the one-time payment from the FVEC Fund must be denied. ORDER The appeal is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs