Citation Nr: 1323269 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 12-00 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 determination of a Department of Veterans Affairs (VA) Regional Office (RO) which denied the appellant's claim for one-time payment from the Filipino Veterans Equity Compensation Fund. A notice of disagreement was received in September 2011, a statement of the case was issued in October 2011, and a substantive appeal was received in January 2012. In June 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. The record reflects that the Veteran had been in receipt of nonservice-connected pension benefits through VA, but that these benefits were terminated in a December 2010 administrative decision, effective January 1, 2011. The Veteran filed a notice of disagreement with this determination in September 2011. He received a statement of the case that was dated on April 12, 2012. He filed a VA Form 9, Substantive Appeal, that was received by VA on June 27, 2012. In October 2012, the Veteran was informed that his June 2012 substantive appeal was untimely. He was notified that he had up to one year to appeal this determination, and he has not yet done so. Therefore, the issue of whether the termination of the Veteran's nonservice-connected pension benefits was proper is not in appellate status. The record reflects that the Veteran completed and submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in November 2010 appointing the Veterans of Foreign Wars of the United States (VFW) as his accredited representative. In December 2010, VA received a letter from Maria I. Guerra, Esquire, claiming to be the Veteran's appointed representative and responding to the notification to the Veteran that VA was going to stop his pension benefits. She enclosed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, designating herself as the Veteran's representative. In a January 2011 letter, the Veteran was notified that Ms. Guerra was not accredited to represent claimants before the VA and, thus, her VA Form 21-22a was being returned. Because VA could not accept the new power of attorney designation form, and because the Veteran has not otherwise withdrawn VFW as his representative, the Board still considers VFW to be the Veteran's accredited representative. 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 U.S. Armed Forces during World War II. CONCLUSION OF LAW The appellant did not have the requisite service to entitle him to payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 5107 (West 2002); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)(1) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). As for the appellant's claim of basic eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund, the United States Court of Appeals for Veterans Claims (Court) has held that in cases where the appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated 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) (as veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of notice concerning proof of veteran status is necessary in most, if not all, cases). The Board finds that the notification requirements of VCAA have been satisfied in this case. In September 2011 and March 2012 letters, VA provided notice of how to establish entitlement to compensation from the Filipino Veterans Equity Compensation Fund, which evidence VA is responsible for obtaining, and what evidence the appellant was responsible for obtaining. In the October 2010 administrative decision notification letter, the RO explained that verification of military service was the responsibility of the National Personnel Records Center (NPRC) and its findings were binding on VA. 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). The claim was subsequently readjudicated following the issuance of the March 2012 letter in the April 2012 supplemental statement of the case. Thus, any deficiencies in the timeliness of this notice letter would not be prejudicial. In any event, the issue presented is solely one of statutory interpretation and the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim for a benefit to which the claimant is not entitled as a matter of law). The facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to the type of service that qualifies an individual for eligibility for compensation under the Filipino Veterans Equity Compensation Fund. Accordingly, VA's duties to notify and assist are generally inapplicable. The Board observes that in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the Federal Circuit held (in the context of a Dependency and Indemnity Compensation claim), that where service department certification of a claimant'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 also 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 statutes 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 has obtained four service department certifications of the claimant's alleged active service (in November 1982, September 2010, October 2011, and March 2012). The two most recent certification requests from the RO expressly describe the inclusion of the documents and statements submitted by the appellant; these documents were provided to the service department for consideration in the certification determination. No new documentation or information has been submitted by the appellant (or any other source) since the most recent service department certification in March 2012. The Veteran has been afforded a hearing before a Veterans Law Judge in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2012) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In the case at hand, the undersigned Veterans Law Judge who conducted the hearing fully explained the issue, notifying the Veteran that "the National Personnel Records Center has a list of units from the Philippines and the unit has to be on their list and then the individual has to be on their list." The undersigned also fulfilled the second requirement by asking questions of the Veteran to determine whether an alternate spelling of the Veteran's name existed that could be of record or whether the Veteran had served in any units other than those that he had already identified. As such, the Board finds that no further action pursuant to Bryant is necessary. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the appellant with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the appellant. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Filipino Veterans Equity Compensation Fund The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were called into the service of the United States Armed Forces of the Far East by President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that the service of certain Filipino veterans does not entitle them to receive full benefits administered by the Secretary of the U.S. Department of Veterans Affairs. 38 U.S.C.A. § 107 (West 2002). The law specifically states the following: Service 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, 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 or the service of any other person in the Armed Forces, except benefits under- (1) contracts of National Service Life Insurance entered into before February 18, 1946; (2) chapter 10 of title 37; and (3) chapters 11, 13 (except section 1312(a)), 23, and 24 (to the extent provided for in section 2402(a)(8)) of this title. 38 U.S.C.A. § 107(a)(1-3)(West 2002). On February 17, 2009, the President signed the American Recovery and Reinvestment Act, intended for "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization." See Pub. L. No. 111-5, 123 Stat. 115 (2009). The legislation included a provision for the creation of the Filipino Veterans Equity Compensation Fund, providing one time payments to "eligible persons" in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). An "eligible person" is defined as any person who served 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 or 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 who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). Additionally, the person must have been discharged or released from such service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009). The Act further directs the Secretary to "administer the provisions of this section in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and shall apply the definitions in section 101 of such title in the administration of such provisions, except to the extent otherwise provided in this section." Id. The Secretary is authorized by statute to prescribe "regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits" under the laws administered by VA. 38 U.S.C. § 501(a)(1) (West 2002). Pursuant to that authority, the Secretary has prescribed regulatory provisions governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. That regulation provides that for the purpose of establishing entitlement to 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 the VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for ninety days for a line of duty disability. 38 C.F.R. § 3.203(b). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, the VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). That is, persons with service in the Philippine Commonwealth Army, USAFFE (United States Armed Forces Far East), including the recognized guerrillas, or service with the new Philippine Scouts under Public Law 190, 79th Congress shall not be deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to non-service-connected disability pension. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. The 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); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has reached the same conclusion. See e.g. Soria v. Brown, 118 Fed. 3rd 747, 749 (Fed. Cir. 1997) (noting that "[b]ecause the United States Department of the Army refused to certify [the claimant's] alleged service in the Philippine Army, the VA properly refused to consider his claim for veterans' benefits based on that service."). Turning to the case at hand, in August 1982, the Veteran submitted a request for nonservice-connected pension benefits. He reported that he was in service from September 1941 to December 1945 and had served as a 3rd Lieutenant with the 1st Battalion, 52nd Infantry Regiment, 51st Division. He provided a service number of "[redacted] Infantry." He reported that he entered service with the United States Armed Forces of the Far East "USAFFE-Daet., Camarines, Norte, Philippines," and had separated at "Tacloban, Leyte Philippines." The Veteran's name, service dates, service number, and unit were submitted to the service department for verification. A November 1982 response states 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. In April 2009, the appellant submitted an application for one-time payment from the Filipino Veterans Equity Compensation Fund. He reported that he had served in the Commonwealth Army with the 1st Battalion, 52nd Infantry Regiment, 51st Division, from September 1941 to December 1945. In July 2010, the RO again contacted the service department and requested verification of the appellant's reported military service. In its request, the RO included the information provided by the appellant as described above. The RO also noted that the appellant's name is not listed in the Reconstructed Recognized Guerilla Roster maintained by the Manila RO. In September 2010, the NPRC responded that the appellant had 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 October 2010, the RO denied the appellant's claim on the basis that the service department had certified that he did not have the requisite military service to establish eligibility therefor. The appellant filed a notice of disagreement in November 2010, and he submitted several documents in support of his claim. In August 2011, the RO submitted this evidence to the NPRC for another service verification attempt. The documents that were submitted by the appellant prior to the August 2011 verification attempt include the following: (1) United States Department of Veterans Affairs National Service Life Insurance (NSLI) certificate effective December 1941. (2) A March 1947 memorandum from "Headquarters, Philippines-Ryukyus Command, Recovered Personnel Divisions," the subject of which is "Status of Claim for Arrears in Pay," stating that, "[u]nder present policies claims for arrears in pay from claimants who were inducted into the Armed Forces of the United States on or before 6 May 1942 fall under the category of "USAFFE" whether or not they subsequently joined a recognized or unrecognized guerilla unit." (3) Special Orders from the First Replacement Battalion, Philippine Army, United States Army Forces Western Pacific, dated in December 1945 lists the appellant as being reverted to inactive service for the convenience of the government. (4) An Affidavit for Philippine Army Personnel listing the appellant as "USAFFE (Reservist)" and providing a detailed description of his service. (5) Affidavits from the appellant and two of his fellow servicemen describing their induction into the USAFFE and subsequent service together. (6) A letter from the Republic of the Philippines, Department of National Defense, Philippine Veterans Board, Manila, certifying that the appellant is a veteran of World War II, having been a member of the 1st Battalion, 52nd Infantry, USAFFE. In October 2011, the NPRC again responded that the appellant had 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. A fourth request was made to the NPRC in March 2012, following the appellant's submission of a certification from the Armed Forces of the Philippines, Office of the Adjutant General, of the appellant's service with the USAFFE. The appellant also submitted a September 1945 record from the Commonwealth of the Philippines Army Headquarters reflecting that he had served under a different service number ([redacted]). He also submitted a letter that he had sent to the Personnel and Administration Center of The U.S. Army Reserve Components dated in June 1984 in which he identified his unit instructor and reported that this individual was a 1st Lieutenant with the U.S. Army. He submitted a document from the Signal Corps of the United States Army that mentioned his unit instructor. He also submitted photographs of himself from when he reported for Military Control in July 1945 at Leyte, Philippines. The March 2012 NPRC verification request again noted that the appellant is not listed in the Reconstructed Recognized Guerilla Roster maintained by the RO in Manila. The March 2012 NPRC reply to the most recent verification request again states that the appellant had 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. In short, as set forth above, the NPRC has four times 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. As noted above, service department findings are binding on VA for purposes of establishing service in the United States Armed Forces. Duro, 2 Vet. App. at 532. (The Board notes, in particular, that 38 U.S.C.A. § 107(a)(1) expressly lists NSLI benefits as an exception to the prohibition of benefits to Filipino veterans with qualifying service as described in 38 U.S.C.A. § 107(a). Thus, the fact that the appellant was approved for an NSLI policy does not confer entitlement a one-time payment under the Filipino Veterans Equity Compensation Fund.) Based upon the NPRC's finding and the law applicable to this case, the appellant does not meet the basic eligibility requirements for a one-time payment from the Filipino Veterans Equity Compensation fund. As the law, and not the evidence, is dispositive, the appeal is denied due to the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Consequently, the appellant's claim must be denied as a matter of law. ORDER Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs