Citation Nr: 1324618	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  10-33 564	)	DATE
	)
	)

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


THE ISSUE

Basic legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

S. Mishalanie, Counsel


INTRODUCTION

The appellant had alleged service with the Philippine Army and Recognized Guerrillas from April 1941 to April 1946.

This case comes before the Board of Veterans' Appeals  (Board) on appeal of a January 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines.

Good or sufficient cause having been shown, the appellant's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107(a)  (West 2002) and 38 C.F.R. § 20.900(c)  (2012). 


FINDING OF FACT

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 requirements for legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund have not been met.  38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. §§ 3.1(d), 3.9, 3.40, 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

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 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 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 its initial adjudication in January 2010.  He was, however, provided with notice of what evidence was needed to show entitlement to Filipino Veterans Equity Compensation benefits in a June 2010 statement of the case.  The case was thereafter readjudicated by means of Supplemental Statements of the Case issued in December 2010 and January 2013. 

The appellant has not alleged that he was prejudiced because he did not receive notice of what was needed to substantiate his claim prior to January 2010, and the Board's review of the record does not disclose prejudicial error in the development of this case.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  Hence, the Board finds that the appellant was not prejudiced by any notice defects.  

The record reflects that based on information and evidence submitted by the appellant, the RO sought service department verification of his claimed service through the National Personnel Records Center.  In November 2009, that Center determined 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.  Based on that service department certification that he did not have qualifying service, the RO determined that the appellant is ineligible for VA benefits as a matter of law.  When an appellant 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 November 2009, July 1910, September 2012, and March 2013.  On each occasion the National Personnel Records Center found that there was no evidence that the appellant had service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  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 appellant has submitted multiple documents, to include copies of his honorable discharge certificate from the Commonwealth of the Philippines, Philippine Army; affidavits prepared by Sergeant Pablo Esterllado, Corporal Facendo Sandoy, and Corporal Timoteo Lacdeo; an April 1946 extract from Headquarters, Sixth Infantry Division, Philippine Army; an April 1946 "Statement of Accounts" prepared by Headquarters, Sixth Infantry Division, Philippine Army; an April 2010 certification from the Armed Forces of the Philippines; and an Affidavit for Philippine Army Personnel prepared in August 1947.  None of this evidence, however, suggests that further development is in order through the National Personnel Records Center.  This is so because his contentions with respect to the units in which he purportedly served have all been considered.  Furthermore, the RO has supplied the service department with copies of all pertinent information.  Therefore, VA's duty to assist has been met. Accordingly, the Board will address the merits of the claim.

One-Time Payment from the Filipino Veterans Equity Compensation Fund

The Board has reviewed all the evidence in the appellant's claims file, to include his multiple contentions.  This record includes various administrative records, and reports from the National Personnel Records Center.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the appellant's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The appellant argues that he has the requisite service to qualify for a one-time payment from the Filipino Veterans Equity Compensation Fund.  A "veteran" is defined as a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable.  38 U.S.C.A. § 101(2)  (West 2002); 38 C.F.R. § 3.1(d) (2012).  A "veteran of any war" is defined as any Veteran who served in the active military, naval, or air service during a period of war.  38 C.F.R. § 3.1(e)  (2012).  Service as a Philippine Scout is included for pension, compensation, dependency and indemnity compensation, and burial allowances, except for those inducted between October 6, 1945 and June 30, 1947, inclusive, who are included for compensation benefits, but not for pension 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 purposes, but not for pension or burial benefits.  38 U.S.C.A. § 107 (West 2002); 38 C.F.R. § 3.40(c)(d)  (2012).  Active service will be the period certified by the service department.  38 C.F.R. § 3.9(a)(d)  (2012).

For the purpose 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)  (2012).

The Court has held that the Secretary has lawfully promulgated regulations making service department findings "binding on the VA for purposes of establishing service in the U.S. Armed Forces."  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). 

In the case at hand, the appellant has submitted evidence showing service with the United States Armed Forces in the Far East; "Mis Occ PC Co. (F-23);" C Company, Bonifacio Sector Mindanao Vesayas/Visayas Force/Headquarters Company Pool, Sixth Infantry Division, Philippine Army/Infantry; Headquarters Company, Sixth Infantry Division, Philippine Army APO 159; Headquarters Company, Headquarters 16th Infantry Division, Philippine Army; and "AFWESPAC, WACG & DP/ Philippine Constabulary. Mis Occ. Co.," at times between April 1941 and April 1946.  However, based on the evidence of record, the appellant's name does not appear on any Reconstructed Recognized Guerrilla Roster.  Indeed, in correspondence from the National Personnel Records Center dated in November 2009, July 1910, September 2012, and March 2013 it was found 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.  Again, VA is bound by service department determinations regarding what constitutes service in the Armed Forces of the United States.

In the case at hand, the appellant has submitted documentation from the Republic of the Philippines allegedly showing that he served in the Armed Forces of that nation.  That documentation, however, does nothing to alter the finding of the National Personnel Records Center that the appellant had no active service in the Armed Forces of the United States.  Under the circumstances, and given that the appellant has failed to meet the most basic requirement of a claim for payment from the Filipino Veterans Equity Compensation Fund, his claim for such benefits must be denied.


ORDER

Basic legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.


______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals




The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs