Citation Nr: 1325925 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-11 950A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 letter decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Board acknowledges that the appellant has submitted various statements reflecting his desire to appoint a representative with regard to his appeal. However, he has not submitted a VA Form 21-22 appointing a recognized service organization or other representative. In order to assist the appellant, the RO sent a letter to him in June 2013 providing a VA Form 21-22 and a list of recognized service organizations and requested that the appellant complete the form and return it to VA within 30 days once he had chosen a representative. The appellant did not respond to the RO's June 2013 letter; therefore, it is presumed that he does not wish to appoint a representative to represent him in his present appeal. 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 most probative evidence of record does not establish that the appellant is C.B.M., and the service department has certified that C.B.M. did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II. CONCLUSION OF LAW The requirements for eligibility to a one-time payment from the Filipino Veterans Equity Compensation fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & Supp. 2012); 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 FINDING AND CONCLUSION 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, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The notice requirements apply to all elements of a claim. See generally Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of the notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b). A letter was sent to the appellant in September 2012 explaining the elements necessary to establish veteran status. Although the letter was not sent to the appellant prior to the initial adjudication of the claim, the claim was readjudicated in an April 2013 supplemental statement of the case. Based on this, a reasonable person could be expected to understand from the notice what was needed to show entitlement to payment from the Filipino Veterans Equity Compensation (FVEC) fund. See Sanders, 487 F.3d at 889; Prickett, 20 Vet. App. at 376. Accordingly, VA's duty to notify has been satisfied. VA's duty to assist the appellant has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). VA requested verification of C.B.M.'s service from the National Personnel Records Center (NPRC) in February 2010, September 2012, and December 2012. VA provided the relevant information submitted by the appellant to the NPRC for consideration in determining veteran status. See Capellan v. Peake, 539 F.3d 1373, 1381 (2008) (noting that the duty to assist requires that where new evidence is submitted by a claimant, it should be submitted for verification of service from the service department pursuant to 38 C.F.R. § 3.203(c)). While VA did not request verification from NPRC of C.B.M.'s military service utilizing an additional date of birth of July [redacted], 1919, contained in a passport, the Board finds that the appellant is not prejudiced in this regard because, as outlined below, the Board finds that the most probative evidence of record fails to establish that the appellant is C.B.M. A remand is inappropriate where there is no possibility of any benefit flowing to the appellant. Soyini v. Derwinski, 1 Vet. App. 540 (1991). There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007). 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 (ARRA), Pub. L. No. 111-5 (enacted February 17, 2009). Any claim under ARRA must be submitted within one year from the date of the enactment of the Act. The application for the claim shall contain the information and evidence VA requires. ARRA § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). The appellant filed his claim in April 2009, within one year of the enactment date, and submitted the requested information. Accordingly, the only issue on appeal is the appellant's veteran status. A claimant is eligible for the one-time payment where that person served and was discharged under conditions other than dishonorable (1) 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 (2) in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ). ARRA § 1002(d). Where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747, 748-49 (Fed. Cir. 1997). To establish entitlement to VA benefits, VA may accept evidence of service such as a DD-214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: the document is issued by the service department; the document contains needed information as to length, time, and character of service; and VA determines the document is genuine and the provided information is accurate. 38 C.F.R. § 3.203(a). Where the evidence submitted does not meet these requirements, VA must request verification of service from the service department. 38 CFR § 3.203(c); Soria, 118 F.3d at 749 (stating that a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service). Where certification is required, the service department's decision on the matter is conclusive and binding on VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Finally, veteran status for purposes of the Immigration Act of 1990 does not apply to claims for VA benefits because the Act permits claimants to rely on Philippine-generated documentation of veteran status, but Title 38 of the United States Code and accompanying regulations require service department verification. Soria, 118 F.3d at 749. In this case, the appellant asserts that he is C.B.M., and that he is a veteran with recognized guerilla service in the Armed Forces of the United States. He reports that his mother, M.M., filed a claim for dependency and indemnity compensation benefits and submitted fraudulent evidence of his death during service in 1946. He contends that he is C.B.M., that he is still alive, that he had qualifying guerilla service with the U.S. Armed Forces, and that he is entitled to a one-time payment from the FVEC fund. Evidence in the claims file reflects that C.B.M. passed away in 1946. A December 1946 Certificate of Death reveals that C.B.M. passed away on April [redacted], 1946 at the age of 56 and was buried at Sta. Monica Municipal Cemetery on April [redacted], 1946. The cause of death was listed as pulmonary tuberculosis. The record reveals numerous claims for death and indemnity compensation benefits filed and argued by C.B.M.'s mother, M.B.M. However, her claims were denied, as the NPRC determined in March 1951 and April 1974 that C.B.M. had no recognized guerilla service nor was he a member of the Commonwealth Army in the service of the Armed Forces of the United States. A November 2008 statement from C.B.M.'s brother reflects his support of his mother's claim for death and indemnity compensation benefits based on his deceased brother, C.B.M.'s, service. An affidavit from D.F. reflects that he personally knew the late C.B.M., as he was C.B.M.'s commanding officer with the Guerilla Bohol Area Command. A January 1972 affidavit from M.M. reflects that he served with C.B.M. and that C.B.M. died at "25th Stationed at APO 72, Tacloban, Leyte, Philippines Army, due to his Tuberculosis" and that he "died in the line of duty." An October 1974 affidavit from D.D. reveals that he knew C.B.M. who was stationed with "M" Company, 3rd Battalion Infantry Regiment, 81st Division, and that C.B.M. left Leyte for treatment of his tuberculosis in 1944. In a March 2009 affidavit, [redacted] reported that he served as Commander of "8" Company, Bohol Provincial Battalion USAFFE from December 1941 through May 1942, and that he personally knew the late C.B.M. He reported that C.B.M. was also a USAFFE soldier who joined the military guerilla in March 1943, and that he last saw C.B.M. at the 26th Stationed Hospital where he was hospitalized of sickness. In support of his claim, the appellant submitted various documentation to show his identity as C.B.M. Specifically, he provided a copy of a March 2009 clearance from the Office of the Sangguniang Barangay, a March 2009 police clearance certificate issued by the Dasmarinas Municipal Police Station, a March 2009 record clearance from the National Bureau of Investigation in Manila, a November 2009 passport from the Republic of the Philippines, a postal identification card, a March 2009 identity card for the Republic of the Philippines Office for Senior Citizens Affairs, and a September 2009 identification card for Armour Philippines, Inc. He also provided an August 2009 statement from Sta. Monica Parish reporting that there was no record of death for C.B.M. Additionally, the Veteran submitted an August 2009 certification from the Office of the Civil Registrar for Alburquerque, Bohol reporting that there was no record of death of C.M. who allegedly died in that municipality. In a March 2009 statement, he reported that he served as a recognized guerilla in World War II, and that he served as a corporal with "M" Company, 3rd Battalion, 83rd Infantry Regiment, 81st Division. He reported dates of service from December 14, 1941 to November 1, 1945. He noted a date of birth of July [redacted], 1919. He submitted a November 2009 joint affidavit from J.B. and R.P. stating that they personally knew of the claimant, and that he is the same person who was born on July [redacted], 1919, and is C.B.M. The appellant provided an April 2011 affidavit from D.D., who stated that he personally knew C.B.M. who was with "M" Company, 3rd Battalion Infantry Regiment, 81st Division station at Ubay, Bohol, Philippines, and that C.B.M. had military guerilla service from March 1942 to March 1943. The evidence of record also reflects an April 1953 letter to C.B.M.'s mother which reflects that a claim for arrears in pay for C.M. was favorably considered and worksheets pertaining thereto were forwarded to the Chief of Finance Service for the Armed Forces of the Philippines. An award issued by the Office of the President for the Republic of the Philippines presented C.B.M. with various service decorations in January 1954. An August 1955 private medical record which states that C.M., who was 25 years old, was admitted to the hospital in June 1945 and diagnosed with pulmonary tuberculosis and chronic nephritis. He was discharged five days later. A December 1961 document from the Office of the Chief of Police notes that C.M. was assigned to "M" Company, 3rd Battalion, 83rd Infantry, Ubay, Bohol in December 1941. A September 1981 certification from the Assistant Adjutant General for the Republic of the Philippines reflects that C.B.M. was paid as CPL and NCS, and that there was no record of his discharge, reversion, or separation from service on file. An August 2008 certification from the Office of the Adjutant General of the Republic of the Philippines documents that C.B.M. was born on July [redacted], 1919, served with USAFFE, was inducted in December 1941, and served with Company "A", 1st Battalion, 101st Infantry. His mother, M.B., was noted to be his beneficiary. A September 2009 certification from the Office of the Civil Registrar for the Republic of the Philippines confirms that C.M. was born on July [redacted], 1919. In an April 2008 affidavit, M. Mahinay reported that he joined the guerilla in Bohol, Philippines in August 1942, and that he personally knows C.B.M., as they served together. M. Manihay reported that they served in "M" Company, 3rd Battalion, 83rd Infantry Regiment, 81st Division, stationed at Ubay, Bohol, Philippines. M. Mahinay noted that he last saw C.B.M. when he was brought to Leyte, Philippines for treatment of tuberculosis. In a February 2010 response, the NPRC certified that C.B.M. had "no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces." November 2012 and March 2013 responses from the NPRC reflect that no change was warranted in the prior negative service certification. After thorough consideration of the evidence of record, the Board concludes that the evidence does not establish that the appellant is C.B.M. In that regard, there is contradictory evidence in the claims file as to whether C.B.M. passed away in April 1946. In that regard, C.B.M.'s mother submitted several claims for dependency and indemnity compensation benefits, and has contended since the early 1950's that her son, C.B.M., passed away in 1946. In support of her claim, she provided a Certificate of Death reflecting that C.B.M. died in April 1946 from pulmonary tuberculosis. C.B.M.'s brother also submitted a statement in support of his mother's claim, referring to his "deceased brother," and an affidavit from C.B.M.'s commanding officer refers to him as the "late" C.B.M. In contrast, the appellant argues that he is C.B.M., and that the documentation submitted by his mother was fraudulent. In support of his argument, he has provided copies of various identification cards, all issued almost immediately before he filed his claim in April 2009. In light of this contradictory evidence, the Board affords little probative value to the appellant's statements and evidence that he is C.B.M., and concludes that the appellant is a person different from C.B.M. Even if the Board were to determine that the appellant is C.B.M., the evidence of record does not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service because there was no DD-214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge issued by the service department. Additionally, the service department has determined that there is no qualifying military service based upon the information submitted. VA is bound by the service department's determination. Duro, 2 Vet. App. at 532. If the service department does not verify the claimed service, the claimant's recourse lies with the relevant service department, but not with VA. Soria, 118 F.3d at 749. Accordingly, even if the Board were to find that the appellant is C.B.M., which it does not, C.B.M.'s service does not meet the basic eligibility requirements for a one-time payment from the FVEC fund. Accordingly, the appellant's claim must be denied. ORDER Eligibility for the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs