Citation Nr: 1326095 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-15 990 ) 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 K. Osegueda, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In addition to the paper claims file, there is a Virtual VA paperless file associated with the Veteran's case. A review of the documents in the paperless claims file reveals documents that are either duplicative of the evidence in the paper claims file or irrelevant to the issue on 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 National Personnel Records Center (NPRC) certified that the claimant 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. CONCLUSION OF LAW The claimant does not have recognized active military service to receive the one-time payment from the FVEC Fund or nonservice-connected pension benefits. 38 U.S.C.A. § 101, 1521, 501(a), 5107 (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5, 123 Stat. 115, 200-202 (enacted February 17, 2009); 38 C.F.R. § 3.3, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Although the appellant in this case was not provided with proper pre-adjudication VCAA notice concerning his claim, the lack of notice was not prejudicial. Palor v. Nicholson, 21 Vet. App. 325 (2007) (citing Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997)). The Court in Palor stated, "[I]n 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 NPRC's refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error." See Palor, 21 Vet. App. at 332. In other words, a VCAA notice error like the one which occurred in this case is not prejudicial where the appellant is not entitled to the benefit as a matter of law. See also Valiao v. Principi, 17 Vet. App. 229 (2003). Nevertheless, the Board also notes that the RO did send the appellant a letter in September 2012 that informed of evidence necessary to substantiate his claim. The letter also advised him of the division of responsibilities in obtaining such evidence. The April 2011 statement of the case (SOC) and January 2013 supplemental statement of the case (SSOC) further provided him the pertinent laws and regulations and explained that verification from the National Personnel Record Center (NPRC) was binding on VA, unless the appellant submitted proof that he served under a different name or service number. Moreover, the appellant submitted documents in support of his claim and informed VA of the name and service number under which he served. The SOC and SSOC also listed the specific documents that could verify his service if submitted. The appellant never submitted one of these documents or indicated that he served under a name not already provided. NPRC has already conducted searches based upon all of the information he has provided. Therefore, there is no other possible development that could be conducted in this case, and any notice error does not prejudice the appellant. In addition, the appellant has not contended, and the evidence does not show, that there are any additional, outstanding service records demonstrating that he had qualifying active service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the Armed Forces of the United States, which VA has not obtained or submitted to the relevant service department for verification. Capellan v. Peake, 539 F.3d 1373 (2008) (finding that VA erred in denying the appellant's claim with no review of subsequent evidence by the service department). The Board notes in this regard that the appellant has submitted documents to VA in support of his claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. On each occasion when new documents or information concerning his alleged qualifying active service were received from the appellant, the RO properly submitted them to NPRC for appropriate service department verification in accordance with the Court's decision in Capellan. Id. The appellant has not asserted that the lack of pre-adjudication VCAA notice was prejudicial to him. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the Board concludes that, because no reasonable possibility exists that providing the appellant with further assistance will aid in substantiating his claim, the lack of pre-adjudication VCAA notice was not prejudicial. See also Sanders v. Nicholson, 487 F.3d 881 (2007), rev'd sub nom. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board concludes that no further notification or development of evidence is required. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA with no additional benefit flowing to the appellant. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Law and Analysis The claimant seeks entitlement to a one-time payment from the FVEC Fund and nonservice-connected pension benefits based upon his service in the Philippines during World War II. By way of history, the Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units of the Commonwealth of the Philippines, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that the service of certain Filipino veterans does not entitle them to receive full benefits administered by the Secretary of the United States Department of Veterans Affairs. 38 U.S.C.A. § 107 (West 2002). In order to be eligible for benefits administered by the VA, the evidence must establish that the individual seeking benefits is a veteran. The term "veteran" is defined in 38 U.S.C.A. § 101(2) as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. A Philippine veteran is limited by law to the award of a defined set of benefits. Service as an Old Philippine Scout prior to October 6, 1945, is included for pension, compensation, dependency and indemnity compensation (DIC) and burial allowances. 38 C.F.R. § 3.40(a). Service prior to July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines in the service of the Armed Forces of the United States (including recognized guerilla service) is qualifying service for compensation, dependency and indemnity compensation, and burial allowance. However, it is not qualifying service for VA pension benefits. 38 U.S.C.A. §§ 107 (a), 1521; 38 C.F.R. §§ 3.40, 3.41. Recognized guerrilla service and reenlistments of Philippine Scouts in the Regular Army from October 6, 1945, to June 30, 1947, are also not included for pension benefits. See 38 U.S.C.A. § 107; 38 C.F.R. §§ 3.7(p), 3.40(b) and (d), 3.203. On February 17, 2009, the President signed the American Recovery and Reinvestment Act, intended for "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization." See Pub. L. No. 111-5, 123 Stat. 115 (2009). The legislation included a provision for the creation of the Filipino Veterans Equity Compensation Fund, providing one time payments to "eligible persons" in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). An "eligible person" for FVEC benefits is defined as 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. See ARRA § 1002(d), Pub. L. No. 111-5. The Act further directs the Secretary to "administer the provisions of this section in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and shall apply the definitions in section 101 of such title in the administration of such provisions, except to the extent otherwise provided in this section." Id. In this case, the threshold question for entitlement to nonservice-connected pension benefits and the one-time payment under the FVEC is whether the claimant has qualifying service for VA purposes. In a February 2010 statement, the claimant reported that he served with the Philippine Commonwealth Army, as a civilian guerilla, in service of the United States Armed Forces. Specifically, he reported that he served as a private in F Company of the 2nd Battalion, 15th Infantry Division. He indicated that his name is not listed in the approved Revised Reconstructed Guerilla Roster (RRGR) due to a limited quota allotted to his outfit by the United States Army, but he was paid as a private. In support of his appeal, the claimant submitted an authenticated copy of his enlistment record that showed he was accepted for service and enlisted at Penarrubia, Abra, in May 1945 in the grade of private to F Company, 2nd Battalion, 15th Infantry Division, and he completed 5 months 19 days for longevity pay and separated in November 1945. The claimant also submitted a copy of special orders dated in November 1945 that indicates he was honorably discharged from the Philippine Commonwealth Army. Additionally, the claimant submitted copies of correspondence from the Assistant Adjutant General of the Republic of the Philippines General Headquarters of the Armed Forces of the Philippines that were issued in connection with an application for United States citizenship. In July 1988, the Assistant Adjutant General certified that the claimant was assigned to F Company, 2nd Battalion, 15th Infantry Division and he was paid as a private from May 1945 to November 1945. He noted that the claimant was honorably discharged from service, upon his request, in November 1945. In September 1989 correspondence, he reported that the claimant's name was not listed on the RRGR. The claimant also submitted a copy of a public assistant and information section referral form from the Philippine Veterans Affairs Office dated in July 1990. In a September 2010 statement, the claimant stated that he received a regular monthly pension and recently received a six year lump sum disability pension from the Philippine Veterans Affairs Office. However, the Philippine government's regulations and laws permitting recognition of military service not recognized by the United States Army are not binding to NPRC. Under 38 C.F.R. § 3.203(a), 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, if the evidence meets the following conditions: (1) The evidence is a document issued by the service department. A copy of an original document is acceptable if the copy is issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; and (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of VA, the document is genuine and the information contained in it is accurate. When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a), VA is required to request verification of service from the service department. See 38 C.F.R. § 3.203(c). The Board has carefully considered the evidence submitted by the claimant, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. 38 C.F.R. § 3.203(a). The documents submitted by the claimant did not include a Department of Defense Form DD-214, Armed Forces of the United States Report of Transfer or Discharge, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a). The documents were also not issued by the appropriate service department. Instead, they merely show that he was a veteran of the Philippine government. Consequently, in April 2009, October 2010, September 2012, and December 2012, the RO requested verification of the claimant's service from the NPRC, indicating that the claimant's name was not listed in the RRGR maintained by the RO. In October 2009, December 2010, November 2012, and January 2013, NPRC reported that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and the VA has no authority to amend or change their decision. The Court has held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon the VA. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Therefore, the NPRC findings are binding and conclusive upon the Board. Id. Accordingly, the claimant may not be considered a veteran for the purpose of establishing entitlement to the one-time payment from the FVEC Fund or nonservice-connected pension benefits. The appeal is denied. ORDER The claim of legal entitlement to the one-time payment from the FVEC Fund is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs