Citation Nr: 1327398 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 10-38 140 ) 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 Fund. ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION 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). The appellant has claimed service during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 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 Filipino Veterans Equity Compensation Fund. The Board notes that the appellant initially requested a Travel Board hearing, but informed VA in September 2011 that he desired a Board video conference hearing. Accordingly, he was advised by letter dated in June 2013 that he was scheduled to attend a Board hearing in July 2013. He failed to report to the hearing as scheduled. There has been no attempt to explain his absence, or to reschedule the hearing. Thus the request is considered withdrawn. Although the appellant submitted additional evidence to the Board in June 2013, the evidence is cumulative of the evidence previously submitted in terms of showing the Veteran's service in the Hunters "ROTC" Guerillas. Moreover, the Veteran's assertion that his name was probably on a list at the National Personnel Records Center (NPRC) that burned in a fire at the NPRC in 1973 is speculation and does not amount to pertinent evidence requiring review by the RO in the first instance. See 38 U.S.C.A. § 20.1304(c). 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 recognized by the United States Government. 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 therefore does not meet the requirements of basic eligibility for these VA benefits. 38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In some cases, however, the VCAA's notification requirements are inapplicable 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). This is such a case. As discussed below, the facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to veteran status. The VCAA's notification requirements are therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). Moreover, the RO sent a July 2012 VCAA letter that explained how to establish entitlement to compensation under the Filipino Veterans Equity Compensation Fund, the respective responsibilities of VA and the appellant in obtaining additional information, and provided information regarding how VA determines disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). 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 ROs requests for verification of service from the National Personnel Records Center (NPRC) as discussed below. 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. 38 U.S.C.A. § 107(a) provides that service 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, will not be deemed to have been active military, naval, or air service except for specified benefits including disability compensation benefits authorized by Chapter 11, Title 38, United States Code. 38 U.S.C.A. § 107(a). Under 38 C.F.R. § 3.40, certain service with the Commonwealth Army of the Philippines, with the Philippine Scouts, and guerilla service is included for VA benefits purposes. These include service of persons enlisted under section 14, Public Law 190, 79th Congress (Act of October 6, 1945). Under 38 C.F.R. § 3.203(a), the 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). 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 Spence v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Under the recently enacted American Recovery and Reinvestment Act, a new 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, Pub. L. No. 111-5 (enacted February 17, 2009). Payments for eligible persons will be either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . . However, nothing in this act prohibit[s] a person from receiving any benefit (including health care, survivor, or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of this Act." Section 1002 (d) provides that an eligible person is 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. Section 1002(j)(2) of the law also provides that VA will administer its provisions in a manner consistent with VA law including the definitions in 38 U.S.C.A. § 101 except to the extent otherwise provided in the statute. The above summaries of the law and regulations as to what service constitutes active service for purposes of establishing veteran status reflect that, in order to qualify for compensation under the Filipino Veterans Equity Compensation Fund, a claimant must meet requirements that are included in the requirements under the law and regulations in effect prior to passage of this law. Thus, in order to show entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund, a claimant must satisfy the criteria required for establishing basic eligibility for legal entitlement to VA benefits. The appellant applied for benefits under the Filipino Veterans Equity Compensation Fund in February 2009 and enclosed multiple documents in support of his claim. These documents were issued by the Philippine Veterans Affairs Office and collectively show that the appellant was a veteran of World War II whose name was carried on the approved reconstructed guerilla roster for the 1st Bn. 44th Div. Hunters "ROTC" Guerillas from June 1944 to March 1945. The documents also include a copy of the appellant's California Drivers License and a Republic of the Philippines Office for Senior Citizens Affairs card. In November 2009, the RO requested verification of service from the NPRC, indicating that the appellant was not listed in the Reconstructed Recognized Guerilla Roster (RRGR) maintained in the Manila RO. The NPRC responded in December 2009 by noting 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. In disagreeing with the RO's February 2010 denial of his claim, the appellant reported that his papers were given to him by the Philippine Veterans Affairs Office. He enclosed a copy of a card showing that he was a life member in the American Coalition for Filipino Veterans. In July 2012, the RO requested from the NPRC re-verification of the appellant's service and enclosed a Philippine Veterans Administration Certificate dated in January 1973, and Certifications from Philippine Veterans Affairs Office dated in October 1981. The NPRC replied in September 2012 that no change was warranted in the prior negative service certification. In January 2013, the RO again requested that the NPRC reverify the appellant's service and included the same records as it did in July 2012. The NPRC again informed VA that no change was warranted in the prior negative service certification. In Capellan v. Peake, the Federal Circuit held (in the context of a Dependency and Indemnity Compensation claim), that where service department certification of an appellant's active service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department. The Federal Circuit also held that it was a violation of VA's duty to assist not to request service department review of additional or new documents or evidence provided by an appellant concerning an appellant's active service after the initial service department certification. Id. at 1380-81. The Federal Circuit further held that "the correct interpretation of the governing statues and regulations requires that a claimant's new evidence be submitted and considered in connection with a request for 'verification of service from the service department' pursuant to 38 C.F.R. § 3.203(c)." Id. In this case, the RO requested verification of the appellant's service from the NPRC on three occasions and included pertinent records. The RO thus complied with its duty to assist pursuant to Capellan. The Board interprets Capellan to require a new request for verification only when there is new evidence that contains additional information that has not previously been submitted to the NPRC. As previously noted, although the appellant submitted additional evidence to the Board in June 2013, the evidence is cumulative of the evidence previously submitted, as it includes the same information regarding his service in the Hunters "ROTC" Guerillas that the RO cited in its previous requests for verification/re-verification from the NPRC. The Board will therefore not remand the claim for the RO to again submit a request for re-verification to the NPRC, as such a remand would impose unnecessary burdens on the VA adjudication system with no benefit flowing to the appellant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (citing Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)). It is noted that he has contended that records or his service may have been burned in the 1973 fire. There is no evidence to support this contention, and there are negative statements through the NPRC without reference to unavailable records. It is possible that the appellant can be recognized as a veteran or the Philippine government, but does not qualify for the benefits requested in this appeal. For the foregoing reasons, the appellant had no qualifying service, the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund have not been met, and the claim must be denied. Because VA benefits are not authorized as a matter of law in this case, the benefit of the doubt doctrine is not applicable. See Sabonis, 6 Vet. App. at 429-30 (where law and not evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under the law). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs