Citation Nr: 1322540	
Decision Date: 07/15/13    Archive Date: 07/24/13

DOCKET NO.  11-15 457	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the 
Republic of the Philippines



THE ISSUE

Legal eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund.



WITNESSES AT HEARING ON APPEAL

Appellant and his son, Mr. MA



ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel


INTRODUCTION

The appellant asserts that during the period December 1941 to July 1946 he served in D Company, 1st Battalion, 85th Infantry Regiment, Bohol Area Command.    

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, that denied the benefit claimed based on a determination that the appellant did not have qualifying active service in a recognized guerrilla unit in the service of the Armed Forces of the United States. 

In July 2012 the appellant testified before a Veterans Law Judge by videoconference from the RO, but no audible transcript of that hearing was produced.  The appellant subsequently requested another Board hearing, and in January 2013 he testified before the undersigned Veterans Law Judge in a hearing at the RO ("Travel Board" hearing).  A transcript of that hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. 38 U.S.C.A. § 7107(a)(2) (West 2002) and § 20.900(c) (2012).  


FINDING OF FACT

The appellant is not recognized by the Service Department as having served as a member of the Philippine Commonwealth Army, to include recognized guerrilla groups, in the service of the United States Armed Forces.


CONCLUSION OF LAW

The legal criteria for entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund are not met.  38 U.S.C.A. § 107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.41 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied under the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

The Board's action below had denied the claimed benefit as a matter of law.  In cases where the law, and not the evidence, is dispositive, the VCAA is not for application.  Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 2-2004 (March 9, 2004).

Nonetheless, the Board finds the appellant has been afforded appropriate notice and assistance.  The appellant has not alleged or demonstrated any prejudice with regards to the content or timing of notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice irregularity and clarifying that the burden of showing that an error is harmful or prejudicial normally falls upon the party attacking the agency's determination). 
 
The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held in a case involving claimed benefits for service in Philippine forces that VA has a duty to request verification of such service from the Service Department; see Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008).  In this case, documents pertaining to the appellant's service were presented to the National Personnel Records Center (NPRC) on three occasions in an attempt to verify the appellant's service as a member of a recognized guerrilla unit, but the NPRC responded on all three occasions that such service could not be verified.

The appellant was afforded a hearing before the Board.  There are two duties imposed on the person who presides at a hearing: (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked; these duties are not impacted by the appellant's receipt of a VCAA-compliant notice letter.  38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010).

Here, during the hearing the presiding Veterans Law Judge explicitly cited the bases for the prior determination and elicited testimony from the appellant in regard to his service during the period in question and to any existing outstanding evidence that should be pursued prior to adjudication of the appeal.  During the hearing the appellant demonstrated actual knowledge of this information.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate the claim).  The Board accordingly finds the appellant is not prejudiced by any error associated with the hearing.

The appellant has not made VA aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of this appeal.  Where there is extensive factual development of a case, and there is no reasonable possibility that any further assistance would aid the appellant in developing the claim, the VCAA does not apply.  Wensch v. Principi, 15 Vet. App. 362 (2001)

In sum, based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file.  Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the appeal.


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Applicable Legal Principles

"Armed forces" means the United States Army, Navy, Marine Corps, Air Force and Coast Guard, including their Reserve components.  38 C.F.R. § 3.1(a).

Service prior to 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, shall not be deemed to have been active military, naval or air service for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person in the Armed Forces, except for benefits under: (1) contracts for National Service Life Insurance entered into before February 18, 1946; (2) chapter 10 of Title 37 of the  United States Code; and, (3) chapters 11, 13, 23 and 34 of Title 38 of the United States Code.  38 U.S.C.A. § 107(a).

Service in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 shall not be deemed to have been active military, naval or air service for the purposes of any of the laws administered by VA except: (1) with respect to contracts of National Service Life Insurance entered into (A) before May 27, 1946, (B) under section 620 or section 621 of the National Service Life Insurance Act of 194, or (C) under section 1922 of Title 38 of the United States Code; or, (2) chapters 11 and 13 of Title 38 of the  United States Code.  38 U.S.C.A. § 107(b).

Benefit payments under 38 U.S.C.A. § 107 are generally made at the rate of $0.50 for each eligible dollar.  38 U.S.C.A. § 107; 38 C.F.R. § 3.40.  Compensation is made at the full-dollar rate for certain Filipino veterans residing in the United States.  38 C.F.R. § 3.42. 

There is in the general fund of the Treasury a fund to be known as the Filipino Veterans Equity Compensation (FVEC) Fund from which amounts shall be available to VA to make payments of eligible persons.  American Recovery and Reinvestment Act of 2009/Division A (ARRA), Title X, Chapter 2.5.1, § 1002(b).  Eligibility criteria to receive an amount from the FVEC Fund are identical to the criteria as defined in 38 U.S.C.A. § 107(a) and (b) cited above.  ARRA, Title X, Chapter 2.5.1, § 1002(d).  Such service is recognized as active service in the armed forces for the purposes of, and to the extent provided in, the ARRA.  ARRA, Title X, Chapter 2.5.1, § 1002(i)

Payment from the FVEC Fund to an eligible person who is not a citizen of the United States shall be in the amount of $9,000.00, and to an eligible person who is a citizen of the United States in the amount of $15,000.00.   ARRA, Title X, Chapter 2.5.1, § 1002(e).  Not more than one payment from the FVEC Fund shall be made to each eligible person.  ARRA, Title X, Chapter 2.5.1, § 1002(f).  There is authorized to be appropriated to the FVEC Fund $198,000.000.00, to remain available until expended.  ARRA, Title X, Chapter 2.5.1, § 1002(l).

Under the implementing regulation to 38 U.S.C.A. § 107, for a Regular Philippine Scout, or for a member of one of the regular components of the Philippine Commonwealth Army while serving with the Armed Forces of the United States, the period of active service will be from the date certified by the Armed Forces as the date of enlistment or the date of report for active duty, whichever is later, to the date of release from active duty, discharge, death, or in the case of a member of the Philippine Commonwealth Army June 30, 1946, whichever was earlier.  The active service of members of the irregular forces guerrilla will be the period certified by the service department.  38 C.F.R. § 3.41 (emphasis added).

For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial benefits VA may accept evidence of service submitted directly by the claimant such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from appropriate service departments if the evidence is a document issued by the service department; the document contains needed information as to the length, time and character of service; and, in the opinion of VA the document is genuine and the information contained therein is accurate.  38 C.F.R. § 3.203(a) (emphasis added).

VA is prohibited from finding that a particular individual served in the United States Armed Forces on any basis other than a United States Service Department document that VA believes to be authentic and accurate, or United States Service Department verification.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  Service Department findings are binding on VA for the purpose of establishing service in the United States Armed Forces.  Id; see also Dacoron v. Brown, 4 Vet. App. 115, 120 (1993).  

When the claimant does not submit evidence of service, or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a) cited above, VA shall request verification from the service department.  38 C.F.R. § 3.203(c).  Service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces.  See Laruan v. West, 11 Vet. App. 80, 82 (1998).

Evidence and Analysis

In his claim, received in March 2009, the appellant asserted qualifying service in D Company, 1st Battalion, 85th Infantry Regiment, Regimental Headquarters, 1st Regiment, 1 Bohol Area Command (BAC).    

In support of his claim, the appellant submitted the following documents: (1) proofs of identity; (2) letter from Philippines Department of National Defense Military Service Board dated in February 2000 and confirming the appellant's status of military veteran; (3) Confirmation of Military Service certificate issued to the appellant by the Philippines Department of National Defense Military Service Board in December 1999 certifying military service in World War II; (4) endorsement dated in January 2000 by Philippines Department of National Defense Military Service Board naming 16 persons including the appellant as having served during the period between December 1941 and July 1946; and, (5) application by the appellant in April 1991 to the Philippines Veterans Service Office for an old-age pension.

In November 2009 the RO submitted a request to the National Personnel Records Center (NPRC) for verification of service, noting that the appellant was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained at the RO.  The request cited the appellant's name, date and place of birth, names of parents, name of spouse, reported dates of service and reported unit of service (D Co., 1st Bn, 85th Inf. Regt., Bohol Area Command).  In January 2010 the NPRC responded as follows: "Subject has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces."

The RO issued the administrative decision on appeal in February 2010.  In it, the RO denied the claimed benefit based on a determination that the appellant was not shown to have served as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States.  

Following the issuance of the decision on appeal the appellant submitted a Notice of Disagreement (NOD) in May 2010 asserting that he had been recognized by the Republic of the Philippines as having served in the unit cited above.  In support of his contention, he submitted the following documents: (1) deposition of the appellant dated in January 1979 asserting service during World War II in D Co., 1st Bn, 85th Inf. Regt.; (2) depositions of Messrs. LRD and CSP dated in November 1979, and of Messrs. VKN and SPT dated in May 1981, all asserting from personal knowledge that the appellant served in the unit cited above; (3) "honorable discharge" certificate from the Philippines Department of National Defense attesting the appellant was inducted into D Co., 1st. Bn, 85th Inf. Regt., Bohol Area Command (Recognized Guerilla) on December 11, 1941, and was discharged on May 30, 1945; and, (4) affidavits from the appellant and from Messrs. FP and FLT dated in June 1978, from Messrs. CSP and LRD dated in July 1978, from Mr. VKN dated in August 1978, and from Mr. JMR dated in April 1991, all attesting from personal observation that the appellant served in World War II as he contends.

The file contains a document dated in May 2010 and issued by the Republic of the Philippines Veterans Affairs Office attesting that according to records available to that agency the appellant had qualifying service with D Co., 1st Bn, 85th Inf., 8th MD, BAC and had accordingly been granted an old-age pension by that agency.

In July 2010 the RO submitted a request to NPRC to attempt to re-verify service based on additional information provided by the appellant, and to indicate whether a change in the prior negative certification was warranted.  NPRC responded in September 2010 in the previous manner; i.e., "Subject has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces."
 
The appellant submitted a substantive appeal in May 2011 asserting he had been inducted into the unit cited (D Co., 1st Bn, 85th Inf. Regt., BAC) in December 1944 (rather than December 1941 as he had previously reported).  He provided his personal biography, stating he had joined the Bolo Battalion of the Bohol Guerilla Force in 1942 and remained affiliated with that organization until her joined the 85th Inf. Regt. in 1944.  He cited the documents he had previously submitted along with his NOD.

The appellant's son, Mr. MA, submitted a letter in May 2011 in support of the appellant's claim.  Mr. MA enclosed photographs of the appellant participating in veterans' events; articles relating to other members of the appellant's cited unit; and, internet articles relating to military operations in the Bohol area during World War II.

In July 2011 the RO made a third attempt to verify the appellant's service through the NPRC, citing service in units including Behind the Clouds Force; Bohol Guerilla Force; United States Forces in the Philippines (USFIP); Bohol Area Command; 84th, 85th and 86th Inf. Regts.; C Co., 1st Bn, 84th Inf. Regt. BAC; and, Headquarters and Headquarters Service Co., 86th Inf. Regt. BAC.  Later that same month, the NPRC responded that no change was warranted in the prior negative service certification. 

The appellant's son, Mr.  MA, sent letters to the Board in July 2012, January 2013, March 2013 and April 2013 recounting the history of events in the Bohol area during World War II and the appellant's participation therein.  He enclosed copies of a document entitled 46th Anniversary Souvenir, Antequera Post (Bohol First District Chapter, Veterans Federation of the Philippines) showing the appellant as a member of that organization, as well as biographical records relating to the appellant (some duplicative of documents already of record).

The appellant and his son testified before the Board in January 2013 that the appellant had been sworn into military service on December 8, 1944.  He served in the 85th Infantry Regiment, which was part of the Bohol Area Command.  The Bohol Area Command also included the 83rd, 84th and 86th Infantry Regiments.  The parent headquarters was the 8th Infantry Division of Central Visayas, Bohol and Cebu.

On review of the evidence of record, the Board notes that Philippine veterans are not eligible for VA benefits unless a United States service department certifies their qualifying service.  Duro, 2 Vet. App. 530, 532; Dacoron, 4 Vet. App. 115, 120.  Review of the evidence in this case shows the appellant has not had qualifying service as certified by the service department.  Accordingly, the threshold requirement for legal eligibility for one-time payment from the FVEC Fund is not shown.  38 U.S.C.A. § 107; 38 C.F.R. § 3.41.

The appellant in this case has been recognized as a qualifying veteran of World War II by the Republic of the Philippines Veterans Service Office.  Recognition of service by the Philippine government, although sufficient to show entitlement to benefits from that government, is not sufficient to establish entitlement to benefits from VA, which is bound to follow the certifications of military departments having jurisdiction over United States military records. 

The Board acknowledges that the appellant is competent to report the circumstances of his service, and that especially where service records were destroyed the claimant is competent to report about factual matters about which he had firsthand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  However, only the service department can establish if and when a person was serving on qualifying active service.  Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994).  The service department's findings are binding and conclusive upon VA.  Duro, 2 Vet. App. 530, 532; Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  An unsuccessful claimant who believes there is reason to dispute the report of the service department or the contents of military records can pursue such disagreement with the service department.  Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).

While the Board is sympathetic toward the appellant, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations.  See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  Further, the Board observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992).  

In sum, based on the evidence and analysis above, the Board has found that the legal criteria for entitlement to one-time payment from the FVEC Fund are not met.  Accordingly, the claim must be denied as a matter of law.


ORDER

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



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs