Citation Nr: 1324402 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 11-29 096 ) 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 (FVEC) Fund. ATTORNEY FOR THE BOARD W.T. Snyder 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). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines (RPI), which denied the appellant's claim for one-time payment from the FVEC Fund on the basis that he had no verified military service. The appellant also has a Virtual VA paperless claims file, which is a highly secured electronic repository, associated with his appeal. All pertinent records in the paperless file are also in the paper file. The Board remanded the case in March 2013 for additional development. FINDINGS OF FACT 1. The appellant's application was timely under the applicable statute. 2. The evidence of record shows the documents appellant submitted in support of his application were determined to be insufficient to verify his claimed service. 3. The National Personnel Records Center (NPRC) 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 service requirements for eligibility to a one-time payment from the FVEC Fund have not been met. 38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2012). The appellant was provided VCAA compliant notice in April 2013. The timing deficiency with regard to this notice was cured by readjudication of the claim in a supplemental statement of the case issued in June 2013. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). VA has met its duty to assist the appellant with his claim. The RO has submitted all relevant evidence, including that provided by the Veteran, to the National Personnel Record Center (NPRC) to obtain service department verification of claimed service. Upon initial review, the Board noted the only request made to the NPRC for verification of the appellant's service appeared to approximate his service dates as September 1, 1942, to June 30, 1946, based on the appellant's initial report of serving from September 1942 to 1947, and the FVEC Fund requirement of service prior to July 1, 1946. The Board noted further that there was a suggestion that the appellant's service dates may be incorrect, including in the PA AGO Form 23 (showing service dates from May 9, 1942, through November 30, 1945) and in the additional page with the "enlistment" and "final endorsement" information submitted after the initial request to the NPRC (showing service date from May 9, 1942, through February 13, 1946). As a result, the Board remanded the case so the RO could submit another inquiry to the NPRC. The RO submitted the second inquiry in April 2013, and the NPRC responded in May 2013. This action substantially complied with the remand instructions. There is no further notice or assistance that would be reasonably likely to aid the appellant in substantiating the claim. Applicable Legal Requirements Under the American Recovery and Reinvestment Act (ARRA), 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 February 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. For eligible persons who accept a payment from the FVEC Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . ." Nothing in this act, however, "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." 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 (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. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on such matters is conclusive and binding on the VA. See 38 C.F.R. § 3.203(c); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Thus, if the United States service department refuses to verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria, 118 F. 3d at 749. In short, under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service. Soria, 118 F. 3d at 749. 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). Analysis The appellant submitted his initial application for one-time payment from the FVEC Fund in April 2009. He reported serving in the 9th Replacement Company, 2nd Replacement Battalion. In support of his application, the appellant submitted a March 2009 document from the Republic of the Philippines, Department of National Defense, Veterans Affairs Office, that certifies he was a veteran of the Philippine Revolution/World War II who served with the 3d Pravil ltn Banal Regt in the grade of PFC; that he was entitled to an old age pension; and, and his category was a recognized guerilla. The appellant also provided authenticated copies of an Affidavit for Philippine Army Personnel (PA AGO Form 23), dated in December 1945. In this document, the appellant attested to the following: his service number and, among other things, that he was a "civilian guerrilla" and served in the 9th Replacement Company, 2nd Replacement Battalion. Dates of service from May 9, 1942, (when he was called into active duty) through September 8, 1945, (when he was processed in the Philippine Army). The individual finance record records payment for the period from September 8, 1945, through November 30, 1945, as a UNSAFE, as well as for the period from July 25, 1945, through November 30, 1945, as a guerrilla. The affidavit notes the appellant joined the Hukbalchap in May 1942 under the command of a Colonel Poblete, and his duties entailed guarding and combat activities in Pampanga and Bulacan until July 1945. In July and August 1945, the unit was converted to Banal Regiment, and the appellant performed guarding and patrol duties. In September 1945, he reported to Camp Bayambang where the unit was commanded by a Lieutenant Briones, and later in September 1945 he was waiting to be processed. He was processed in September 1945. The affidavit is attested to by a Captain Lee R. McDonald, who signed in the capacity of a Summary Court Officer. The affidavit bears a stamp that notes it was authenticated in March 2009. The stamp does not reflect the name of the authenticating office or agency. On an April 2009 VA Form 21-4138, the Veteran listed his dates of service as September 1942 to September 1947. The RO submitted these documents to the National Personnel Records Center (NPRC) for verification of service, along with a VA Form 21-3101 including the appellant's full name, date and place of birth, unit of assignment, and service number consistent with the evidence of record. The character of separation or discharge and last grade, rate or rank was listed as unknown. The date of entry into active duty was listed as September 1, 1942, and the date of separation from active duty was listed as June 30, 1946. The RO noted that the appellant's name was not listed in the RO's Reconstructed Recognized Guerrilla Roster (RRGR). In April 2010, the NPRC responded 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. The Veteran subsequently submitted additional copies of the Affidavit for Philippine Army Personnel, which were identical to the document submitted to the NPRC. In August 2010, however, he submitted an additional page, which is an authenticated copy of a document showing his "enlistment record" and "final endorsement" information. This document indicates that the appellant enlisted on May 9, 1942, that he was separated from the service at the grade of PFC for the convenience of the government on February 13, 1946, and that his character was "good." The same service number and unit of assignment are listed. In response to the RO's second inquiry, the NPRC reported in May 2013, that no change was warranted in the earlier negative determination. The appellant's name was not listed on the roster of recognized guerillas. In this case, the appellant has reported that he had qualifying service. He has not; however, submitted any service department documentation of that service. The document issued by the Philippine Veteran's Affairs Office was issued by the Republic of the Philippines and not the service department. The Affidavit for Philippine Army Personnel contains only the appellant's report of his claimed service. It does not contain any service department findings as to the validity of his reports. The record also includes statements from the appellant, which do not satisfy the requirements of 38 C.F.R. § 3.203(a). As discussed above, on two separate occasions, the NPRC has specifically certified that service department records showed the appellant had no service as a member of the PCA or recognized guerrillas in the service of the U.S. Armed Forces. The evidence purportedly from the Armed Forces of the Philippines (noted above), and affidavit, submitted by the appellant fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as none are official documents of the appropriate U.S. service department. Only the service department's decision on such matters that is conclusive and binding on VA. In this case, the applicable department is the U.S. Army. The documents, therefore, are not acceptable as verification of the appellant's service for the purpose of receiving payment from the FVEC Fund as administered under the law for VA benefits. See Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). In such circumstances, the applicant's only recourse lies within the relevant service department, not with VA. Because there is no service department record showing the appellant had qualifying service, the weight of the evidence is against the claim. Reasonable doubt does not arise, and the claim must be denied. ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs