Citation Nr: 1323806	
Decision Date: 07/25/13    Archive Date: 08/06/13

DOCKET NO.  11-06 636	)	DATE
	)
	)

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


THE ISSUE

Whether the appellant is a veteran for the purpose of establishing entitlement to one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.



ATTORNEY FOR THE BOARD

M. Hannan, Counsel



INTRODUCTION

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).

The claimant/appellant alleges he is a deserving Philippine guerrilla veteran of World War II.  

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decisional letter issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines in which the appellant's claim seeking compensation from the Filipino Veterans Equity Compensation (FVEC) Fund was denied.  The Board remanded the case for additional development in November 2012.  The case has now been returned to the Board for appellate review.

The appellant has represented himself throughout the course of this appeal.

The question of "veteran" status of the person seeking VA benefits is a threshold requirement for establishing entitlement to such benefits.  Therefore, the issue on appeal before the Board is as reflected on the title page.

In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claim.  Virtual VA does not currently contain any evidence pertinent to the claim that is not already included in the paper claims files.


FINDING OF FACT

The service department by way of 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

The appellant is not a veteran under applicable United States law, and is not eligible for the one-time payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 107 (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duty to Notify and Assist

VA's duty to notify and assist claimants in substantiating their claims for VA benefits has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In Palor v. Nicholson, 21 Vet. App. 325 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, in claims where it is necessary to first establish veteran status, proper VA notice must be tailored to also inform claimants of the information or evidence necessary to prove the element of veteran status, what information the claimant/appellant is responsible for providing, and what information VA will seek to obtain concerning that element.

A close review of the claims file shows the appellant was not advised of VA's duties to notify and assist in the development of his claim prior to the RO's initial adjudication in May 2010.  A Statement of the Case (SOC) issued in December 2010, provided the appellant with notice of what evidence was needed to show entitlement to FVEC benefits; the SOC also addressed the types of evidence VA was responsible for getting, as well as the types of evidence the appellant was responsible for.  In addition, the RO sent the appellant a letter, in February 2013, which contained this information.  The case was thereafter readjudicated by means of a Supplemental Statement of the Case (SSOC) issued in January 2013.  See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).

The Board finds that the appellant has not been prejudiced by any notice defects.  The appellant has not alleged that he was prejudiced because he did not receive notice of what was needed to substantiate his claim, and the Board's review of the record doe not discloses prejudicial error in the development of this case.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The record reflects that, based on information the appellant provided in his April 2009 claim for benefits and in copies of affidavits from the appellant and other individuals and a copy of a document entitled Reconstructed Guerrilla Unit Designation dated in December 1947, along with documents from the Assistant Adjutant General of the Armed Forces of the Philippines and the Philippines Veterans Affairs Office, the RO sought service department verification of the appellant's claimed service by way of the National Personnel Records Center (NPRC) and, based on service department certification that he did not have qualifying service, determined that the appellant is ineligible for VA benefits as a matter of law.  When a claimant is ineligible for VA benefits as a matter of law based on the service department's refusal to certify the alleged service, he is not prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status.  See Palor, 21 Vet. App. at 332-33 (noting that "given the binding nature of the U.S. service department's certification . . . a remand for further development could not possibly change the outcome of the decision").

The RO sought certification of the appellant's military service in March 2010; the RO had previously sought certification in May 2002, and June 2005.  There is no indication that information submitted by VA to the service department for the purposes of certifying his service was erroneous or incomplete.  The March 2010 request noted that the appellant was not listed in the reconstructed Recognized Guerrilla Roster (RRGR) maintained at the RO.  The appellant has submitted copies of documents that indicate he was a member of the Jamito Medical Company, 2nd Bicol Province Infantry Regiment of the Bicol Brigade and of the 103rd Squadron LGAF (F-23).  The NPRC considered those documents before sending a negative answer in March 2010; the documents were previously considered by NPRC in July 2002, and July 2007.  See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (re-certification when there is newly received relevant evidence since the negative certification).

As previously noted, the Board remanded the case for additional development in November 2012.  Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268 (1998).  On remand, the appellant was sent a duty to assist letter in February 2013.  In this case, the Board concludes that substantial compliance with the Board's remand instructions has been achieved.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (noting that a Court or Board remand confers upon a Veteran the right to substantial, but not strict, compliance with that order).

Therefore, VA's duty to assist has been met.  Accordingly, the Board will address the merits of the claim.

II.  The Merits of the Appeal

The appellant contends he is a deserving Philippine guerrilla veteran of World War II and that he served with the Jamito Medical Company, 2nd Bicol Province Infantry Regiment of the Bicol Brigade.  In his April 2009 application for one-time payment from the Filipino Veterans Equity Compensation Fund, the appellant listed his full name and provided his birthplace and date of birth, his dates of service and the unit in which he served.  He also provided the names of his spouse, father, and mother.  

Under the American Recovery and Reinvestment Act, a new 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.

For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . ."  However, nothing in this act "prohibit[s] a person from receiving any benefit (including health care, survivor, or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of this Act."  

For purposes of establishing entitlement to VA 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 under 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).  When the claimant does not submit evidence of service or the evidence does not meet the requirements of this section, the VA shall request verification of service from a service department.  38 C.F.R. § 3.203(c).

The appellant has submitted copies of correspondence from the Assistant Adjutant General of the Armed Forces of the Philippines, which includes a Certification from the General Headquarters, Armed Forces of the Philippines, dated in October 2000.  This document indicates that a Carlos Manuel served with the Jamito Medical Company, 2nd Bicol Provincial Infantry Regiment Bicol Brigade.  Also in support of his claim, he submitted affidavits of individuals, some of whom claimed personal knowledge of the appellant's military service as recognized guerrilla with the Jamito Medical Company.  

In 2004, the Adjutant General of the Armed Forces of the Philippines reported that the appellant was listed as Manuel Carlos on a Revised and Reconstructed Guerilla Roster (RRGR) for the Jamito Medical Company.  In a January 2005 report, the NPRC stated that, although the appellant's name was listed on the guerrilla roster, his claims folder failed to contain information compatible with that of its archives.  Therefore, a positive certification could not be favorably considered.  

In a July 2005 report, the NPRC stated that when a search is conducted, a claimant's name is variated throughout the whole process.  In the appellant's case Manuel, Carlos, and Carlomagno were used to try to identify him.  Specifically, the search included just Manuel as the last name, and with Carlomagno and Carlos as the first name.  There were no listings with the first name of Manuel or Carlos/Carlomagno and there were no listings with the "B" as the middle initial.  Therefore, a positive certification could not be favorably considered.

The RO submitted another request for certification in January 2010, and asked that all units of assignment be checked.  In March 2010, the NPRC reported that the appellant did not have any service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.

None of the supporting documents submitted by the appellant was issued by a U.S. service department.  The appellant has not submitted any documents that meet the first requirement of 38 C.F.R. § 3.203(a).  He has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the U.S. Armed Forces.  

Therefore, VA sought service department verification as to whether the appellant served in the U.S. Armed Forces in the Philippines (and specifically whether he has had guerrilla service as alleged).  Although the RO noted that the appellant's name not was listed in the Reconstructed Recognized Guerrilla Roster maintained by the RO in its requests for information about the appellant sent to the service department, the RO did list variants of the appellant's name as well as his two units as identified by the evidence of record.  However, the service department (via the NPRC) certified, in March 2010, that it had no record of the appellant serving as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  The NPRC had previously certified this in July 2002, and in July 2007.  This certification is binding on VA, and VA has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet. App. 530 (1992).  

It is important for the appellant to understand that the findings of the U.S. service department verifying a person's service are binding on VA for the purpose of establishing service in the U.S. Armed Forces.  If a change of service department certification is what the appellant seeks, his remedy lies with the service department and not with VA.  See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).

The appellant has presented no evidence that meets the requirements of 38 C.F.R. § 3.203(a), and the service department has verified that he did not have service which would qualify him for the benefit sought.  VA is bound by that determination.  Hence this appeal must be denied. 

The appellant has provided no further evidence that would warrant a request for re-certification of his service/nonservice by the service department since the last re-certification of March 2010, and VA must abide by the service department's certification.  See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994); Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (re-certification when there is newly received relevant evidence since the negative certification).  Accordingly, the Board finds the appellant did not have the requisite service and is not a veteran under applicable United States law so as to establish eligibility for compensation from the Filipino Veterans Equity Compensation Fund.  Since the law is dispositive in this matter, the claim must be denied because of the absence of legal merit or entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

The appeal to establish veteran status for the appellant and his entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs