Citation Nr: 1322770 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 11-29 985 ) 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 the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. The Board notes that, in May 2013, the appellant submitted additional evidence consisting of service documents dated in January 1946 and October 1995, and current identification documents after the issuance of the May 2013 supplemental statement of the case. She did not waive agency of original jurisdiction (AOJ) consideration of such evidence. However, the newly received evidence consists of documents already of record and previously considered by the RO. Therefore, a remand for AOJ consideration of such evidence is not necessary. A July 2013 review indicates that there is no Virtual VA paperless claims file in this case. 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 United States Armed Forces. CONCLUSION OF LAW As the criteria for basic eligibility for a one-time payment from the FVEC Fund are not met, the claim is without legal merit. 38 U.S.C.A. §§ 101, 107, 501(a) (West 2002 & West 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 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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. See 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 appellant was provided with notification of the elements necessary to establish qualifying service in February 2010 and January 2013, which were followed by readjudications of the claim in the September 2011 statement of the case and April 2013 supplemental statement of the case. The notification did not specifically provide her with information as to what documents, if any, she could submit that would constitute acceptable evidence of qualifying military service. See Palor, 21 Vet. App. at 332. Notwithstanding the foregoing, the RO undertook the necessary development to substantiate the claim and the law, not the facts, is dispositive of this appeal. As set forth in more detail below, the 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 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 benefit as a matter of law. See 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 NPRC's refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error."); see also Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009). Accordingly, the Board will proceed with adjudication of this matter. Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons. Pub. L. No. 111-5, § 1002, 123 Stat. 115. VA 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 the Act, submitted to VA a claim for benefits under the Act. The application for the claim shall contain the information and evidence VA requires. Id. § 1002(c)(1). If an eligible person who has filed a timely claim for benefits under the Act dies before payment is made, the payment shall be made instead to the surviving spouse, if any, of the eligible person. Id. § 1002(c)(2). An eligible person is any person who 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 a 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and was discharged or released from such service under conditions other than dishonorable. Id. § 1002(d). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012). See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department; not with VA. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203 (2012); Soria, 118 F.3d at 749. The appellant's application for a one-time payment from the FVEC fund filed on April 22, 2009, was timely received. Pub. L. No. 111-5, § 1002(c)(1), 123 Stat. 115. On that form, the appellant listed her dates of service as October 15, 1944 to June 29, 1945, and indicated that she served with the MD CO ZMD (Zambales Military District). The claims file does not contain a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge. Thus, the RO requested verification of the appellant's military service from NPRC. In support of the claim, the appellant provided documents including: a copy of her passport; a copy of her California Senior Identification Card; Certification of the appellant's Birth issued by the Republic of the Philippines Office of the Civil Registrar in June 2007; a January 1946 Certification from the Headquarters Zambales Military District indicating that the "subject enlisted personnel" had been paid her salary for the period extending from April 1, 1945 to June 30, 1945; and an October 1995 certification from the Department of National Defense Philippine Veterans Affairs Office indicating that the appellant was a veteran of World War II/Philippine Revolution who served with MD CO ZMD, with service recognized from October 1944 to June 1945, and that her name was carried on the Approved Revised Reconstructed Guerilla Roster of 1948. In November 2009, the RO issued its first request for information/verification of service from NPRC, indicating that the appellant's name was documented in Reconstructed Recognized Guerrilla Roster maintained by VARO, and requesting additional information including AGUZ Form 632 and all extracts of Form 23. In response, NPRC requested that VA provide a AGO PA Form 24 from TAG-PA. As such, the RO obtained authorization from the appellant to obtain such form. However, in June 2010 correspondence from General Headquarters Armed Forces of the Philippines, VA personnel were advised that, after a thorough search and verification, it appeared that the appellant had no available AGO Form 23 in her Military Personnel file, and, therefore, the document could not be furnished. In August 2010, the RO issued another request for information/verification of service from NPRC, indicating that the appellant's name was documented in Reconstructed Recognized Guerrilla Roster maintained by VARO, and noting that her Form 23 was not available. In September 2010, the NPRC provided certification to the effect 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 2011, the appellant provided additional evidence in support of her claim, which included copies of two Voucher for Pay and Allowances of Individual Enlisted Men, both dated in 1946, issued by the War Department. In January 2013, the RO requested re-verification of service from NPRC, based on submitted additional evidence consisting of the aforementioned vouchers. In a March 2013 response from NPRC, it was indicated that no change was warranted in the prior negative certification. Thereafter, in May 2013, the appellant submitted additional evidence in support of her claim including Special Order No. 69 regarding medical detachment, issued by the Zambales Military District dated in June 1945; and a letter dated in November 1994 requesting certification regarding the appellant's service records. While the RO did not attempt to re-verify the appellant's service after receiving such documents, the Board finds that a remand to do so is not necessary as the information contained in such documents, to specifically include her service with the Magsaysay Guerrillas in the Zambales Military District, was already considered by NPRC. There is no additional information regarding the appellant's service in such documents that has not been considered by NPRC. The Board finds that the appellant is not entitled to a one-time payment from the FVEC. On two separate occasions, September 2010 and March 2013, the NPRC certified that the appellant had no qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces such that she is entitled to a one-time payment from the FVEC. Thus, the appellant is not considered a "Veteran" for VA compensation purposes. See generally 38 U.S.C.A. § 101(2) (West 2002 & Supp. 2012). It was explained that in the case of Capellan v. Peake, 539 F.3d 1373, 1382 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that VA must ensure that service department verifications as to whether an individual served in the United States Armed Forces are based on all available evidence, including any evidence of military service that a claimant submits to VA. Collectively, the evidence submitted in support of the 2010 and 2013 NPRC information requests included the appellant's names, social security number, date and place of birth, parents' names, spouse's name, dates of military service, i.e., October 15, 1944, to June 29, 1945, and the unit of assignment designated as MD CO ZMD and DHQ, ZMD, Magsaysay's Guerillas, respectively. Furthermore, the 2013 request included consideration of the voucher for pay and allowances from the War Department. Ultimately, the pertinent information submitted by the appellant in support of her claim was considered by the NPRC. None of the additional information which was submitted to the NPRC for re-verification in 2013 changed the initial service department verification of 2010 to the effect that 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. This negative certification, verified on two occasions, is binding on VA which has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet App. 530, 532 (1992). As summarized above various forms of evidence provided by the appellant in support of her claim have included: a copy of her passport; a copy of her California Senior Identification Card; a January 1946 Certification from the Headquarters Zambales Military District indicating that the "subject enlisted personnel" had been paid her salary for the period extending from April 1, 1945 to June 30, 1945; an October 1995 certification from the Department of National Defense Philippine Veterans Affairs Office indicating that the Appellant was a veteran of World war II/Philippine Revolution who served with MD CO ZMD, with service dated recognized from October 1944 to June 1945; and Special Order No. 69 regarding medical detachment, issued by the Zambales Military District dated in June 1945. However, none of this evidence satisfies the requirements of 38 C.F.R. § 3.203 as acceptable proof of service as none of them are official documents of the appropriate United States service department. See 38 C.F.R. § 3.203 (2012). The proper course for the appellant, if she believes that 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 relevant service department (in this case, the U.S. Army). See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). The Board observes in this regard that recognition of service by the Philippine government is not sufficient for benefits administered by VA because VA is bound by the service department certifications. Given the service department's repeated verification that the appellant had no qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces, the Board finds that she is not entitled to a one-time payment from the FVEC Fund. Therefore, the appellant's claim of entitlement to a one-time payment from the FVEC Fund must be denied as a matter of law. See Sabonis, 6 Vet. App. at 426. ORDER The claim for a one-time payment from the FVEC Fund is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs