Citation Nr: 1326769	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  06-35 834	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Manila, the Republic of the Philippines


THE ISSUE

Basic eligibility for entitlement to VA disability benefits.  


REPRESENTATION

Appellant represented by: The American Legion


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The appellant served in the military and guerilla forces of the Philippines during World War II.

This appeal comes before the Board of Veterans' Appeals (Board) from an April 2011 Memorandum Decision of the United States Court of Appeals for Veterans Claims (Veterans Court).  The appeal originates from an April 2009 rating decision of the RO in Manila, the Republic of Philippines.

In a decision dated in May 2009, the Board denied the same issue that is now before it.  The appellant appealed that decision to the Veterans Court.  In the April 2011 Memorandum Decision, the Veterans Court reversed the Board's May 2009 decision, held that new and material evidence had been received, and remanded the issue to the Board for development as specified in the Memorandum Decision.

In December 2011, the Board reopened the claim and remanded it to the RO for additional evidentiary development to comply with the Veterans Court's instructions.  The RO not having granted the benefit sought on remand, has since returned the issue to the Board for further appellate action.  

The Board notes that the appellant separately filed a claim for benefits under the Filipino Veterans Equity Compensation Fund in May 2009.  That claim was denied in an August 2009 decision.  The appellant initiated an appeal of that decision, and a statement of the case was issued in December 2009.  The appellant submitted a document in February 2010 that arguably qualifies as a substantive appeal, although the wording makes this far from clear.  Nevertheless, while the appealed claims deal with distinct benefits under VA law, each requires a threshold determination as to whether the claimant meets the basic eligibility requirements for VA benefits, such as status as a "veteran", the core of any claim before the VA.

The Board has accordingly characterized the issue in these terms, rather than listing the individual benefits sought.  Indeed, the Board's decision here precludes both of the benefits claimed, rending the issue moot. 

In reviewing this case the Board has not only reviewed the 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).  Expedited handling is requested.)


FINDINGS OF FACT

1.  There is no dispute as to the facts pertinent to resolution of this appeal.

2.  The appellant had no recognized service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces and has no status as a veteran.


CONCLUSION OF LAW

The criteria for basic eligibility for VA compensation benefits have not been met. 38 U.S.C.A. §§ 101, 107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant seeks to establish basic entitlement to VA disability benefits based upon qualifying service as a Philippine military veteran and guerilla during World War II.  In particular, he claims service with the United States Armed Forces of the Far East (USAFFE).

"Veteran" means 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); 38 C.F.R. § 3.1(d).  "Veteran of any war" means any veteran who served in the active military, naval or air service during a period of war.  38 C.F.R. § 3.1(e).

A Philippine veteran is limited by law to the award of a defined set of benefits.  Service as a Philippine Scout is included for pension, compensation, dependency and indemnity compensation (DIC) and burial allowances, except for those inducted between October 6, 1945 and June 30, 1947, inclusive, which are included for compensation benefits, but not for pension benefits.  38 U.S.C.A. § 107(b); 38 C.F.R. § 3.40(a), (b).

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, 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.

Only service department records can establish if and when a person has qualifying active service.  Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994).  The service department's findings are binding and conclusive upon VA.  VA does not have the authority to alter the findings of the service department.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).

If a claimant does not submit evidence of military service, or the information is insufficient, VA must request the information from the service department.  Sarmiento v. Brown, 7 Vet. App. 80, 82 (1994); see also Laruan v. West, 11 Vet. App. 80, 82 (1998) (observing that if there is reason to believe that information provided to service department was erroneous (e.g., misspelled name), VA may be required to resubmit request for information to service department.)

It has been held that a person seeking VA benefits must first establish by a preponderance of the evidence that the service member upon whose service such benefits are predicated has attained the status of veteran.  D'Amico v. West, 12 Vet. App. 264 (1999) rev'd on other grounds, 209 F.3d 1322 (2000); Holmes v. Brown, 10 Vet. App. 38, 40 (1997).  

For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Department of Defense Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate U.S. service department under the following conditions: (1) the evidence is a document issued by the United States service department; (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.  38 C.F.R. § 3.203(a).

Here, the evidence includes the June 1997 claim, on which the appellant listed his dates of service as from 5-11-41(Camp Ord., Tarlac) to 12-27-46 (Camp Murphy), his dates of POW confinement as 4-9-42 to 5-21-42, and his unit of service as 5th Co., G.S. Troop, 2nd Bn; 1st Div., Inf.  

A Philippine POW medal application received in April 1997 lists the service number as [redacted].  The dates of confinement as a POW were listed as 4-9-42 to 5-21-42.  

An April 1946 Affidavit of Philippine Army Personnel received in March 2006 shows the service number as [redacted].  The appellant is indicated as having service in the USAFFE and USAFFE guerillas.  The appellant's unit of service at that time was Utility Section Hqtrs. Det. 2nd Camp Compliment Anao, Tarlac.  Other units listed included 5th Co. GST 2nd BN. 4th Div.; 5th Co. GST Interior; ECLGA grla.; and 1st Provisionary Regt. 

The extract of Philippine Form 23 dated April 1946 and received in April 2006 indicates essentially the same information as the Affidavit of Philippine Army Personnel.  Units of service included 5th Co. GST 2nd BN. 4th Div.; and ECLGA 1st Provisionary Regt.  The service number was [redacted].  

A Republic of Philippines Department of Defense Certification dated March 1976 and received in April 2006 shows that unit of service as 5th Co GST 2 4th Div (F-23) and the service number as [redacted].  

A document entitled Service Record received in November 2011 shows the original unit as 5th Co. G.S.T. P.C., and later attachment to 8th Prov Co. 3rd Repl. Bn.  A document entitled Soldier's Qualification Card contains the same unit information.  

The RO submitted the above information to the National Personnel Records Center (NPRC) in February 2012 and in March 2012 received certification that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.  

A prior submission in August 1997 produced the same result.  

The predicate issue of whether new and material had been received to reopen this claim was adjudicated by the Veterans Court, which specifically noted that the original application lists the appellant as being part of the "5th Co., G.S. Troops, 2nd Bn. 1st Div. INF," while the Philippines Department of Defense Certification states that he was in the fourth division, not the first.  It also provides an induction date of December 22, 1941, and discharge on March 3, 1945, as opposed to May 11, 1941, and December 27, 1946, respectively, as listed on his original application.  Furthermore, the Certification notes that the appellant was inducted as a sergeant in the "ECLGA Grla" and lists the names of three commanding officers.  The appellant's original application does not mention involvement in guerrilla units or the names of commanding officers; the RO's request for information sent to the NPRC shows an unchecked box next to "Guerrilla."  

In addition, the Veterans Court noted that Form 23 lists medals earned in service, and the mere existence of Form 23 appears to have some significance in the service department verification process.  The Veterans Court concluded that this evidence was new and material under 38 C.F.R. § 3.156(a) and is not in dispute.  

The Board notes that the evidence found to be new and material by the Veterans Court was submitted to the NPRC, including the Form 23.  The alternative service dates were also reported as well as the various units of service.  While the RO did not put an X in the Guerilla box, it did list the appellant's guerilla service in ECLGA.  Accordingly, the Board finds that the evidence found to be new and material by the Veterans Court was submitted and otherwise reported to the NPRC.  

As noted above, qualifying service can only be demonstrated by official U.S. Department of Defense service documents, such as a Form DD 214, Certificate of Release or Discharge from Active Duty.  38 C.F.R. § 3.203(a).  The documents submitted by the appellant are documents of the government of the Philippines and are not official U.S. Department of Defense service documents.  Where a claimant does not submit satisfactory proof of qualifying service, VA is required to seek U.S. service department verification of service before rendering a decision.  Capellan, 539 F.3d at 1380.  

The NPRC is the agency designated to verify service on behalf of the U.S. military, naval, and air services.  

The Board reiterates that the information provided by the appellant was forwarded to NPRC, which is the required procedure in a case such as this where the documentation specified under 38 C.F.R. § 3.203(a) is not furnished.  

The NPRC has certified that he did not have the requisite service for VA disability compensation benefits or FVEC Fund benefits.  The NPRC verification is binding on VA such that VA has no authority to change or amend the finding.  Duro, 2 Vet App. at 532.  As the appellant is not a "veteran" within the meaning of VA law, basic eligibility for VA disability compensation benefits and FVEC Fund entitlement is not demonstrated.     
 
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012).  

In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law.  See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law).  

As discussed below, there is no dispute as to the pertinent facts, such as the appellant's name or service information.  Pursuant to both 38 C.F.R. § 3.203(c) and VA Secretary's statutory duty to assist (as set forth in 38 U.S.C.A. § 5103A), 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.  See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008).  Here, the RO has submitted all pertinent documents for verification to the NPRC.  The appellant has not made the RO or Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal.  There is no further assistance that would reasonably be expected to aid in deciding the claim.  Resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits, including establishing status as a veteran.

The Board also notes that, in Palor v. Nicholson, 21 Vet. App. 325 (2007), the United States Court of Appeals for Veterans Claims noted that, when a service department refuses to certify service, there are presumably no documents issued by the service department that the appellant could submit to VA that would show qualifying service under 38 C.F.R. § 3.203.  Palor, 21 Vet. App. at 332.  Similar to Palor, there are no further means to verify the claimed service by the appellant.  In such a situation, no amount of notice or further assistance to the appellant can change the legal outcome.  As noted in Soria, and reiterated in Palor, the appellant's "only recourse lies within the relevant service department, not the VA."  Soria, 118 F.3d at 749.  See Palor, 21 Vet. App. at 333.  VA, therefore, has no further notice or assistance duty to the appellant.

As noted above, this appeal involves a remand by the Board for additional evidentiary development.  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  While such substantial compliance is required, strict compliance is not.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  In this case, the RO substantially complied with the Board's remand instructions by seeking service department verification of the appellant's claimed qualifying service.  In connection with that action, the RO provided the service department with updated information.  As there is substantial compliance with the Board's remand instructions a further remand is not necessary.


ORDER

Basic eligibility for entitlement to VA disability benefits is denied.  


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs