Citation Nr: 1326112 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 12-01 375 ) 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 Veteran's Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant does not have any recognized active military service in the Armed Forces of the United States. This matter comes to the Board of Veterans' Appeals, hereinafter the Board, on appeal from a letter decision issued in December 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In that action, the RO denied his claim for one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund on the basis that he had no valid military service. 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 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 during World War II. CONCLUSION OF LAW The appellant did not have the requisite service to entitle him to payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)(1) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The United States Court of Appeals for Veterans Claims, hereinafter the Court, has held that in cases where the appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated by the VCAA to inform the appellant of the information or evidence necessary to prove the element of veteran status. Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) ("[s]ince 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"). In this case, although the appellant was not provided with the required notification prior to the initial adjudication of his claim, the Board finds that no prejudice has resulted. In the December 2009 decision letter, the RO explained that verification of military service was the responsibility of the National Personnel Records Center (NPRC) and that its findings were binding on VA. Because NPRC had certified that the appellant had no 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, he was not legally entitled to payment from the Filipino Veterans Equity Compensation Fund. After affording the appellant the opportunity to submit additional evidence and argument, the RO reconsidered his claim in the September 2011 Statement of the Case and the Supplemental Statement of the Case of April 2013. See Medrano v. Nicholson, 21 Vet. App. 165 (2007); Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a Statement of the Case, is sufficient to cure a timing defect). B. Duty to Assist Under the VCAA, VA also has a duty to assist claimants in the development of a claim. This includes assisting the claimant in procuring service medical records and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). A review of the record indicates that all necessary evidence relative to this claim has been obtained and associated with the claims file. As set forth in more detail below, the service department has certified on three different occasions that the appellant had no 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. The initial negative certification occurred in October 2009. After the appellant submitted additional information, the RO again contacted on two different occasions the service department and requested reverification of service for the appellant. See Capellan v. Peak, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008) (holding 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 must be submitted to the service department for review). In March 2010 and March 2013, the service department responded that the appellant had no 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. Since that third negative certification, the appellant has produced no additional information which would warrant a further request to NPRC. Additionally, the issue on appeal does not involve a medical question; the Board finds that there is no need for a VA medical opinion or examination. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. No reasonable possibility exists that any additional assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). C. Background In February 2009, the appellant submitted a claim for a one-time payment from the Filipino Veterans Equity Compensation Fund. It was contended that he served as a recognized guerilla in the "F" Company, MVR Hunters - ROTC Guerillas. Dates of service were purported to be September 1, 1943, to February 30, 1946. In December 2009, the RO denied the appellant's claim on the basis that the service department had certified that he did not have the requisite military service to establish eligibility therefor. The appellant appealed this determination, noting that he had served honorably and that his "service" had been confirmed by the Philippine Government. To support his claim, he submitted numerous documents that he contended supported his claim for benefits. Subsequently, the RO contacted the service department and requested further verification of the appellant's reported military service. The RO forwarded to NPRC copies of all of the documents provided by the appellant. In March 2010, NPRC once again responded 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. Additional clarification was sought from NPRC in 2013, and once again NPRC responded that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States. D. Applicable Law On February 17, 2009, the President of the United States 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 $9,000.00 (US dollars) for non-United States citizens, or $15,000 (US dollars) for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). An "eligible person" is defined as any person who served 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 who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). Additionally, the person must have been discharged or released from such service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009). 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. The Secretary is authorized by statute to prescribe "regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under the laws administered by VA." 38 U.S.C.A. § 501(a)(1) (West 2002). Pursuant to that authority, the Secretary has prescribed regulatory provisions governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. That regulation provides that for the purpose of establishing entitlement to 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 if the evidence meets 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). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for ninety days for a line of duty disability. 38 C.F.R. § 3.203(b) (2012). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, the VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c) (2012). The Court has held that the findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. at 532; see also Dacoron v. Brown, 4 Vet. App. 115 (1993). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has reached the same conclusion. See Soria v. Brown, 118 F.3d at 749 (noting that "[b]ecause the United States Department of the Army refused to certify [the claimant's] alleged service in the Philippine Army, the VA properly refused to consider his claim for veterans' benefits based on that service"). E. Analysis As set forth above, the NPRC has on multiple occasions 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. In total, during the course of the first appeal and now this appeal, NPRC has three times certified that the appellant had no service in the military components of the United States Armed Forces. VA is bound by that certification. The Board has carefully considered the documentation submitted by the appellant but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 (2012) as acceptable proof of service. The documents submitted by the appellant do not contain the necessary information to establish entitlement to the benefit sought. As such, those documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA, including the one-time payment from the Filipino Veterans Equity Compensation Fund. In any event, the Board notes that the service department has considered the information contained in that documentation and nonetheless repeatedly 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. Again, the Board is bound by this certification. See Capellan, 539 F.3d at 1376 (noting that "if the United States service department refuses to verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not the VA"). As the service department has certified that the appellant did not have the requisite service to qualify him for payment from the Filipino Veterans Equity Compensation Fund, the appeal must be denied. Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs