Citation Nr: 1325574 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 11-21 228A ) 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 Fund. ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The claimant/appellant alleges he was a member of a recognized guerrilla unit in the service of the United States Armed Forces during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decisional letter by the Manila RO that denied the appellant's claim seeking compensation from the Filipino Veterans Equity Compensation Fund. Because veteran status of the person seeking benefits is a threshold requirement for establishing entitlement to such benefit, that is the matter before the Board. The Board has not only reviewed the appellant's physical claims file but also the file on the "Virtual VA" system to insure a total review of the evidence. 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 United States Armed Forces. CONCLUSION OF LAW The appellant is not a veteran, and is not eligible for one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 107 (West 2002); 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 Under the American Recovery and Reinvestment Act, 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 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). At the outset, the Board notes that in March 1990, the appellant filed for service-connected disability benefits. In conjunction with his claim, the appellant submitted a certificate showing that a Mr. V.A. served as a private in "L" Co., 3rd Bn., 41st Inf., PA and was honorably discharged from the Philippine Army in January 1946. In July 1990, the RO requested verification of the appellant's service from the U.S. Army Reserve Personnel Center. In a February 1991 response, based on the information provided by the appellant, the U.S. Army Reserve Personnel Center stated that there was no record 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. Based on the response from the U.S. Army Reserve Personnel Center, in a May 1991 decisional letter, the RO denied the appellant's claim of entitlement to service-connected disability benefits on the basis that there was no evidence he was a member of the Philippine Commonwealth Army or a recognized guerrilla unit in service of the United States Armed Forces during World War II, and as such he had not established that he was a veteran who was entitled to service-connected benefits. In February 2009, the appellant filed for a one-time payment from the Filipino Veterans Equity Compensation Fund. He contended that he served with a recognized guerrilla unit, "L" Co. 96th Infantry (Lite), from 1944 to June 1945. He listed his name as V.L.A., with a date of birth in April 1922, and his service number as unknown. He also provided the name of his spouse, her date of birth, and the year of their marriage. See February 2009 VA Form 21-4138. Based on the February 1991 response from the U.S. Army Reserve Personnel Center, the RO denied the Veteran's Filipino Veterans Equity Compensation Fund application as there was no evidence that he had served in the Philippine Commonwealth Army or a recognized guerrilla unit in service of the United States Armed Forces during World War II. In June 2009, the appellant submitted a 1945 affidavit in which he had stated that had been serving with a civilian guerrilla unit, "L" Co., 3rd Bn. 96th Inf., beginning in November 1943. The Board notes that the appellant resubmitted this same affidavit in August 2011. In April 2011, based on the evidence submitted by the appellant, the RO sought re-certification of the appellant's service. In May 2011, 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 Armed Forces of the United States. Upon review of the evidence, the Board notes that 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 in the Philippines. Therefore, VA sought service department verification of whether the appellant served in the U.S. Armed Forces in the Philippines. Based on the information contained in the various forms of documentation submitted by the appellant, the service department (via the NPRC) certified 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 appellant has provided no further new evidence (since the May 2011 certification) that would warrant a request for re-certification of his service/nonservice by the service department and VA must abide by the service department's certification. See Capellan v. Peake, 539 F.3d 1737 (Fed Cir. 2008); Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Accordingly, the Board finds the appellant did not have the requisite service and is not a veteran 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). Duties to Notify and Assist The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. 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). VCAA 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 VCAA notice must be tailored to also inform claimants of the information or evidence necessary to prove the element of veteran status, what information the appellant is responsible for providing, and what information VA will seek to obtain concerning that element. A close review of the claims file found that the appellant was not advised of VA's duties to notify and assist in the development of his claim prior to the initial adjudication of this matter. However, the Board finds that he is not prejudiced by such notice defect. In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court reversed the case of Sanders v. Nicholson, 487 F.3d 881 (2007), which had held that any error in VCAA notice should be presumed prejudicial and that VA must always bear the burden of proving that such an error did not cause harm. In reversing Sanders, the Supreme Court in essence held that - except for cases in which VA has failed to inform the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki, 129 S. Ct. at 1704 -06. The appellant has not alleged that he was prejudiced because he did not receive timely notice of what was needed to substantiate his claim. The record reflects that based on information the appellant provided in his initial March 1990 claim for benefits and his subsequent February 2009 FVEC claim and supporting documentation, the RO sought service department verification of his service, and based on service department certification that he did not have qualifying service, determined he 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 appellant's 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 ( "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 and advised him of what documents he could submit to assist in the matter. 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 not identified or submitted any further evidence suggesting that re-certification of his service/nonservice is necessary. Based on the foregoing, it is the Board's determination that VA fulfilled its VCAA duties to notify and to assist the appellant as to the issue discussed above, and thus, no additional assistance or notification was required. The appellant has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384. ORDER The appeal to establish Veteran status for the appellant and his entitlement to one-time payment under the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs