Citation Nr: 1322344 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-41 192 ) 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 Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The appellant claims that she is the surviving spouse of an individual who had service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States. 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). In September 2011, the RO received the appellant's claim for nonservice-connected death pension benefits. The RO sent the appellant a notice letter regarding the claim in September 2012, but it has not yet been adjudicated. Accordingly, the matter is not currently before the Board, and it referred to the RO for any further appropriate action. FINDING OF FACT The appellant's spouse did not have 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 entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Under 38 U.S.C.A. § 5103 (West 2002), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. In this case, the appellant was provided with adequate notice in September 2012, including what is required to substantiate her claim, her and VA's respective roles in providing and obtaining evidence, and how VA determines an effective date and disability rating with respect to awards of VA benefits. Although the notice was provided subsequent to initial adjudication of the appellant's claim, the claim was subsequently readjudicated in a January 2013 supplemental statement of the case, thereby rendering any defect in timing of the notice as harmless and nonprejudicial. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the Board finds that the appellant has demonstrated actual knowledge of the information and evidence necessary to substantiate her claim. This case turns on the question of whether her spouse had the requisite qualifying service, and the appellant has articulated and submitted evidence in support of her contention that her spouse served with a recognized guerilla unit. She has demonstrated awareness that the relevant evidence in this case would show that the unit in which her deceased spouse served was one recognized by the appropriate U.S. service department. In addition, the duty to assist has been satisfied. As noted, the case involves the legal issue of whether the appellant's deceased's spouse's service qualifies her for payment from a fund established by Congress. The RO has obtained relevant information from the service department, and the appellant has obtained and provided records pertaining to her spouse's service. She has demonstrated awareness of the information and evidence necessary to substantiate the claim, and she has not suggested that there is any pertinent outstanding evidence. The Board notes that the United States Court of Appeals for the Federal Circuit held in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) that, in the context of a Dependency and Indemnity Compensation claim, where service department certification of a claimed veteran'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 in Capellan 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 statues 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. In this case, the RO submitted an initial request to the service department in November 2009 to which the service department responded in January 2010. After receipt of new information and evidence from the appellant, the RO submitted a second and a third request to the service department in December 2012 and February 2013, to which the service department responded in February 2013 and March 2013, respectively. See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008). With these requests, the RO submitted to the service department all relevant information and evidence in the claims file. The appellant did not submit any additional information or evidence following the third request. Thus, VA has complied with Capellan. In summary, the facts relevant to this appeal have been properly developed, and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159. Therefore, there is no prejudice to the appellant in proceeding to the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Law and Analysis The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the appellant seeks entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. See the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, section 1002. 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. Section 1002(j)(2) also provides that VA will administer its provisions in a manner consistent with VA law except to the extent otherwise provided in the statute. The appellant's deceased spouse submitted an application for a one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC) in March 2009. He later died in November 2009, which was before his claim was adjudicated. In January 2010, the service department certified that the appellant's deceased spouse 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's application for a one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC) was received in February 2010. She does not argue, and the evidence does not show, that she is a person who meets the definition provided by Section 1002(d) and is personally eligible for payment from the fund. Rather, she contends that her spouse met the criteria, and thus, as his surviving spouse, she may receive payments on his behalf. See Section 1002(c)(2), American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009). The critical issue involved in this case is whether the appellant's spouse had the requisite military service. For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial 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). 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). The United States Court of Appeals for Veterans Claims (Court) has held that 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); Venturella v. Gober, 10 Vet. App. 340 (1997). The appellant contends that her husband served with the organized guerilla unit designated as "L" Co 3rd Bn Masbate Grla Regt, from September 5, 1942, December 1, 1944, or December 21, 1944, (different dates are indicated on the various documents submitted) to March 27, 1946. In addition, a Form ANGR2 dated in March 1987 purported to be issued by the Armed Forces of the Philippines states that he had honorable service from December 1944 to an unknown separation date with "K" Co 3rd Bn Masbate Grla Regt and indicates that he was "Carried in Revised Recognized Grla roster." The ANGR2 is not the type of document that VA may recognized as establishing recognized service because it is not from a United States service department. See 38 C.F.R. § 3.203(c). The appellant and her deceased spouse have also submitted several other Republic of the Philippines documents, including a Statement of Claimant's Back Pay Account from the Bureau of Treasury, an Extract of Military Service Records, Ministry of National Defense, an Enlistment Record, a certificate of discharge from the Philippine army, a letter regarding discharge from the Philippine Commonwealth Army, and an individual Reservist's data sheet. These are also not the types of documents that VA may recognize as establishing recognized service because they are not from a United States service department. See 38 C.F.R. § 3.203(c). Moreover, in January 2010, the appropriate service department indicated that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces. In February 2013, and again in March 2013, after it was provided all of the above-listed information and evidence, the service department determined that no change was warranted in its prior negative certification. The United States service department's verification is binding on the VA. See 38 C.F.R. § 3.203; Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The service department has determined that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the United States Armed Forces. The Board must therefore find that the preponderance of the evidence shows that the appellant's spouse did not have the type of qualifying service that would confer upon the appellant entitlement to a one-time payment form the Filipino Equity Compensation Fund. As the preponderance of the evidence is against the claim on the determinative matter of whether the appellant's spouse had the requisite service for legal entitlement to the benefit sought on appeal, the benefit of the doubt rule is not for application in resolution of this appeal. The appeal is denied. ORDER The appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs