Citation Nr: 1324602 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-22 440A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. 2. Entitlement to Department of Veterans Affairs (VA) death benefits, to include Dependency and Indemnity Compensation (DIC), accrued benefits, pension, and burial benefits. ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In May 2009, the RO issued a decision that denied the deceased claimant's (hereinafter "the claimant") claim for a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. As the initial claimant died in June 2009, the Appellant filed a notice of disagreement (NOD) in September 2009. See American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). In November 2009, the RO issued a rating decision which denied the Appellant's claim for VA death benefits. She filed an NOD in March 2010. In response, the RO issued a statement of the case, addressing both claims, in April 2010. The Appellant perfected her appeal to the Board with a VA Form 9 filed in May 2010. Although the Appellant indicated on her VA Form 9 that she wished to appear at a hearing before the Board, she submitted a clarification form that was received by VA in October 2010. She indicated on the October 2010 form that she no longer wished to appear at a hearing. Accordingly, the Appellant's request for a Board hearing is withdrawn. 38 C.F.R. § 20.704(e) (2012). The Board observes that the Appellant wrote in a June 2010 letter that she was represented by the American Legion. However, no valid VA Form 21-22, Appointment of Veterans Service Organization, is associated with the claims file. As VA mailed the Appellant a VA Form 21-22 in May 2013 and requested that she complete such form, but she has not responded. Therefore, the Appellant is unrepresented in the current matter before the Board. The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals that they are duplicative of the evidence in the paper claims file. 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). FINDINGS OF FACT 1. The claimant died in June 2009, after filing a claim for a one-time payment from the FVEC Fund. 2. The National Personnel Records Center (NPRC) has certified that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. CONCLUSIONS OF LAW 1. The criteria for basic eligibility for a one-time payment from the FVEC Fund are not met. 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). 2. The criteria for entitlement to VA death benefits are not met. 38 U.S.C.A. §§ 101, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.3, 3.40, 3.57, 3.102, 3.159, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 VA death benefits and for a one-time payment from the FVEC fund governed by the American Recovery and Reinvestment Act of 2009. As such, both claims hinge on whether or not the claimant completed qualifying military service. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where a claimant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated by the VCAA to provide notice 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 October 2011 which was followed by readjudications of the claim in 2013 supplemental statements of the case. The notification did not specifically identify what documents, if any, would constitute acceptable evidence of qualifying military service. See Palor, 21 Vet. App. at 332. However, 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 claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces. 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 Appellant is not entitled to the claimed benefits 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 NPR'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). The Court has recognized that enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). Additionally, VA's Office of General Counsel has held that VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. VAOPGCPREC 5-2004. Here, the law is dispositive of both claims on appeal. 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). Similar requirements govern eligibility for service-connected death benefits: Service in the Commonwealth Army of the Philippines from and after the dates and hours when called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, United States Army, pursuant to the Military Order of the President of the United States dated July 26, 1941, is included for compensation benefits, but not for pension benefits. Service department certified recognized guerrilla service and unrecognized guerrilla service under a recognized commissioned officer, only if the person was a former member of the United States Armed Forces (including the Philippine Scouts), or the Commonwealth Army, prior to July 1, 1946, is included for compensation benefits, but not for pension benefits. 38 C.F.R. § 3.40(b), (c), and (d). Such service does not qualify a claimant for pension benefits. Id.; Cacalda v. Brown, 9 Vet. App, 261 (1996). 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 claimant's application for a one-time payment from the FVEC fund, filed on February 24, 2009 by the claimant, was timely received. Pub. L. No. 111-5, § 1002(c) (1), 123 Stat. 115. The claimant provided identifying information, including a service number ([redacted]), and reported that he had served with the "K" Company Battalion from October 21, 1943 to December 21, 1944. The Appellant later submitted the following documents in support of the Veteran's service: (1) a November 1997 letter from the Philippine Army Branch of the U.S. Army Reserve Personnel Center (USARPC), which reflects the claimant's name and lists an undated assignment to "K" Company 3rd Battalion 95th - the form does not reflect which information was completed by the USARPC and which information was filled in by the claimant (2) An "after burial report" completed by the Veterans Federation of the Philippines stating that the claimant served with "K Co. 3rd Bn. 95th Infantry, Leyte Area Command," a "recognized guerilla outfit," from October 1943 and was later "attached to the Medical Staff of the 77th Division Engr. Bn. Of the U.S. Army," until discharge in April 1945; (3) A handwritten note from the Office of the Deputy Chief of Staff for Reservist and Retiree Affairs attesting that the claimant was paid as a private from October 1944 to December 1945 for service in the "Army of the United States for the Far East 95th Infantry 92nd Division Leyte Area Command;" (4) A U.S. Army identification card dated December 1944 and indicating that the claimant served in the "K" Company of the 3rd Battalion, 95th Infantry, signed by a 1st Lieutenant - the claimant's name is handwritten into a blank on the card; (5) A certification of service from the Office of the Adjutant General of the Armed Forces of the Philippines reflecting the claimant was recognized as part of "K Co 95th Inf" from April 1943 and was paid as a private from November to December 1944; (6) A certification from the Department of National Defense in the General Headquarters of the Armed Forces of the Philippines indicating that the Veteran's name appears in the "Approved Revised Reconstructed Guerilla Roster of "K" Co, 95th Inf, LAC with a date of recognition on 21 Oct 43 and with a revised date of recognition on 20 Apr 43." The RO has, on multiple occasions, requested verification of service by the applicable United States service department using two versions of the claimant's name, his reported service number (as he reported, [redacted], and as corrected later by the Appellant, [redacted]), the names of his parents, his place and date of birth, his reported dates of service, and the unit designations provided in supporting documents. Specifically, the claims file reflects RO inquiries to the service department made prior to the current appellate period in 1996 and 1999 as well as during the appellate period in 2010, 2011, and 2012. In the most recent 2012 inquiry, it was noted that the Armed Forces of the Philippines had indicated that the claimant's name was listed in the Reconstructed Recognized Guerrilla Roster; the RO also included notation of other supporting documentation as provided by the Appellant. Following each inquiry, the NPRC reported that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The appropriate form for requesting verification of service in cases involving Philippine service was utilized for each inquiry during the appellate period and the inquiries reflect that adequate information was provided to allow for meaningful searches. Thus, no proof of qualifying service, as verified by the service department, has been established, rather, the NPRC has found on multiple occasions that the claimant does not in fact have qualifying service and the Board is bound by the NPRC's determination. As noted above, statements and documentation pertaining to the claimant's reported service in the Philippine Commonwealth Army have been received from the Appellant in an effort to support the appealed claims. However, none of that documentation or lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203 (2012). On the contrary, that evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought. Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including death benefits and one-time payment from the FVEC Fund. NPRC has duly considered the present application for VA benefits and has, on multiple occasions during and prior to the appellate period, certified that the claimant 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, the Board is bound by that certification. See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (providing that if the service department does not verify the claimed service, the applicant's only recourse lies within the service department, not with VA). The Board is sympathetic to the Appellant's situation. However, the pertinent legal authority governing entitlement to VA death benefits and entitlement to payments from the FVEC Fund is clear and specific: It must be shown by verification of the United States service department that the underlying claimant has qualifying service. The Board is bound by the law as written. As, on these facts, there is no legal theory that would permit entitlement to death benefits or to a one-time payment from the FVEC Fund, the Appellant's claims must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. Entitlement to VA death benefits, to include DIC, accrued benefits, pension, and burial benefits, is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs