Citation Nr: 1327196	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  10-38 821	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  In that decision, the RO denied the appellant's claim for a one-time payment from the FVEC.  

In July 2013, the Veteran testified before the undersigned at videoconference hearing from the San Diego, California RO.

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 appellant is not shown to have had active military, naval, or air service, and is not an individual or a member of a group considered to have performed active military, naval, or air service.  


CONCLUSION OF LAW

The appellant does not have status as a veteran for purposes of his claim for a one-time payment from the Filipino Veterans Equity Compensation Fund, and does not meet the requirements of basic eligibility for these VA benefits.  38 U.S.C.A. §§ 101, 107, 5103A (West 2002); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  

Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The United States Court of Appeals for Veterans Claims (Court) has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006).  

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 re-adjudication of the claim.  See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In the present case, complete notice was not issued prior to the adverse determination on appeal.  However, fully compliant notice was later issued in a September 2011 communication, and the claim was thereafter readjudicated in May and September 2012.  Any timing deficiency has here been appropriately cured.  Mayfield, 444 F.3d 1328.  

The VCAA also requires that VA assist a claimant in obtaining evidence to substantiate the claim.  The RO assisted the appellant by requesting verification through the National Personnel Records Center (NPRC) of his service four times.  In the course of requesting verification it submitted the appellant's evidence and contentions.  The NPRC researched service department records.  There is no additional assistance that would be reasonably likely to assist in substantiating the claim; there are no indications in the record of additional evidence that remains outstanding.  In this regard, the claim does not turn on a medical question and an examination or medical opinion could not substantiate the appellant's status as a veteran.  

The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  Here, the transcript of the July 2013 Board hearing shows the missing elements needed to substantiate the claim were discussed, the appellant gave information regarding his FEVC claims and responded to questions aimed at determining whether further information was available to substantiate the claim.  The appellant's representative was present at the hearing.  No complaints have been raised regarding the conduct of the hearing.  

The VCAA's duty to assist requirements apply to VA's efforts to obtain verification of service, as explained in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), and this duty was satisfied by the RO's request for verification of service from the NPRC, as discussed further below.  There is no medical question; hence an examination or opinion is not required.  The Board finds the duties to notify and to assist have been met.  

FVEC

The appellant, who was born in October 1932, contends that he had Recognized Guerilla service.  In his April 2009 claim, he stated he was a Recognized Guerilla in the "TANIB" guerilla unit, Mortar Platoon Headquarters, "HW" Company from May 20, 1944 to September 3, 1945.  His parents and spouse's names were listed, along with the date of his marriage.  

In his February 2010 notice of disagreement, the appellant stated that he was a private with the TANIB guerilla unit and went through Japanese checkpoints.  He worked with his sister-in-law.  He thought at one point a list of unit members had been prepared in anticipation of compensation but the commander of the unit would not agree to a 5 percent cut from the amount intended for the unit; the list was abandoned.  

In May 2010, the appellant sent letters he had written to an Immigration and Naturalization Services director about meeting his father, a general, during WWII.  The appellant stated that after the war, he served and helped officers and soldiers of the 11th Airborne Division, for example, by surveying the area where the Japanese barracks were located.  

In August 2010 statement, the appellant asserted he and the other lay persons whose statements were submitted were competent to report he was in a Recognized Guerilla unit.  He asked that the lay evidence and 38 C.F.R. § 3.159 be considered.  

At the July 2013 Board hearing, the appellant stated he was twelve years old when he started working for a guerilla unit during World War II.  (Transcript, p 3.)  He described his duties.  (Transcript, pp 4-5.)  He stated he was not suspected by the Japanese due to his age at the time.  (Transcript, p 6.)  The appellant's wife did not meet him until 1967.  (Transcript, P 8.)  The appellant's representative stated there was no other evidence to submit other than what was already of record.  (Transcript, p 11.)  

The appellant submitted multiple documents, including a statement from E.V. from January 1984 stating he was a member and "runner" or courier for "TANIB" guerilla unit which operated in the province of Cavite during the Japanese occupation.  Also submitted was a September 1984 statement from T.M., an executive officer of the TANIB guerilla unit.  T.M. knew the appellant as a young boy and successful runner for the unit.  He was inducted as a private on May 20, 1944, was assigned to a guerilla unit at Mortar Platoon Headquarters, "HW" Company, and was honorably discharged in September 1945 when the unit was disbanded due to the Japanese surrender on September 2, 1945.  

In August 2010, R.R. stated he was a member of TANIB guerilla unit and served with the 675th Artillery Battalion 11th Airborne Division; he remembered the appellant also was a member of the unit.  The appellant continued to serve the 11th Airborne at Mataas na Kahoy, Batangas after the guerilla unit disbanded.  

The Veteran also submitted copies of a voter registration document as well as his passport, driver's license and senior citizen card.  

During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and 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.  Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941).  Current law, however, provides that many of those served in the Philippine Islands during World War II did not have qualifying active service for the purpose of receiving VA benefits.  38 U.S.C.A. § 107 (West 2002 & Supp. 2013).  

The particular benefit claimed originated on February 17, 2009, with the American Recovery and Reinvestment Act.  Pub. L. No. 111-5, 123 Stat. 115 (2009).  That legislation, in part, established the FVEC, which is charged with providing one-time payments to eligible persons.  Pub. L. No. 111-5, § 1002, 123 Stat. 115 (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 dated July 26, 1941.  That includes any person who served in military units such as the 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; and any person 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 that service under conditions other than dishonorable.  Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009).  

Under 38 C.F.R. § 3.203(a) (2012), 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) 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).  

Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and 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 Spencer v. West, 13 Vet. App. 376, 380 (2000); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  

In Capellan v. Peake, 539 F.3d 1373, 1381 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that in cases where service is not established based upon a document issued by the service department, VA must verify that claimant's service with the service department.  New evidence submitted by a claimant in support of a request for "verification of service from the service department" must be submitted for service department review.  Id.  When new identifying information is submitted after the service department last considered whether service was met, another request for verification must be made in order for the duty to assist to be fulfilled.  See Capellan, 539 F.3d at 1381-82; 38 U.S.C.A. § 5103A (West 2002).  

In October 2009, the VA RO sent an inquiry to NPRC requesting information about his service.  The request included the name of the appellant along with his reported unit information, VA file number, date of birth, place of birth, parents name, spouse's name and the alleged dates of duty.  The RO stated his name was not listed on the Reconstructed Recognized Guerrilla Roster maintained by VARO Manila.  The response from NPRC noted he had no service as a member of the Philippine Commonwealth Army, including in the service of United States Armed Forces.  

In September 2011, the RO forwarded statements by T.M. and R.R.; again, a negative response was given by the NPRC.  In September 2012, the RO sent the appellant's correspondence, the statement of E.V., the copies of the identification cards (driver's license, passport, and etcetera); a negative response was given.  This information was re-sent in October 2012 and the same response was given.  

The NPRC has duly considered the appellant's application for VA benefits and certified four times that he had no qualifying active service as a member of the Recognized Guerrillas.  The Board is bound by that certification.  See Capellan, 539 F.3d 1373.  

While the appellant has provided competent and credible evidence that he supported guerilla units as a child during the Japanese occupation; none of the submitted evidence shows that he was actually enrolled in a recognized guerilla unit.  The documentation and lay evidence does not qualify as acceptable proof of service alone.  38 C.F.R. § 3.203.  For purposes of § 3.203, VA may only accept certain documentation as proof of service and otherwise needs verification of service from the service department.  The submitted evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought.  Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the FVEC.  

The Board concludes that the appellant does not meet the requisite legal requirements for obtaining a one-time payment from the FVEC and the claim for benefits must be denied.  


ORDER

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.  



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs