Citation Nr: 1328171 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 12-20 504 ) 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. J. Kunz, Counsel INTRODUCTION This appeal comes before the Board of Veterans' Appeals (Board) from an August 2010 decision by the United States Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In that decision the RO denied entitlement of the appellant to a one-time payment from the FVEC Fund. The Board has reviewed the appellant's claims file. The Board checked and found that there is not a file for the appellant on the Virtual VA electronic file system. 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 certified that the appellant had no documented service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. CONCLUSION OF LAW There is not required verification that the Veteran had the service required for eligibility for a one-time payment from the FVEC Fund. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Payment from the FVEC Fund The appellant submitted a claim for a one-time payment from the FVEC Fund. Under the American Recovery and Reinvestment Act a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC fund to eligible persons. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). An eligible person is any person who 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and was discharged or released from service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203 (2012); Soria, 118 F.3d 747. Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012); Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if a United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria, 118 F.3d 747. The appellant filed in January 2010 a claim for a one-time payment from the FVEC Fund. He reported that from May 1943 to December 1944 he served with a guerilla unit called the Bolo Battalion. He stated that he did not have a service identification number because the service of his unit was not recognized. He related that the commandant of his unit assembled papers and set out to obtain recognition of the service of the unit and the members of the unit. He reported that the commandant was ambushed and killed on the way to requesting such recognition. He stated that the papers were lost and that recognition of the service of the members of the unit was not obtained. The appellant acknowledged that his name was not on a master list of persons whose service in Philippines was recognized. He related having learned that VA did not consider the master list the only way to establish a person's status as a veteran and eligibility for VA benefits. In his claim the appellant described his duties and activities with the Bolo Battalion. The appellant submitted affidavits from three persons who knew the appellant during World War II. The persons stated that they were aware of the activities of the Bolo Battalion, of the appellant's activities with that unit, and of the ambush and death of the commandant before he was able to submit a roster of the members of the unit. The RO found that the appellant's name was not in the Reconstructed Recognized Guerilla Roster that the RO maintains. The RO requested action from the National Personnel Records Center (NPRC) in St. Louis, Missouri, a United States government agency that manages military records. The RO asked NPRC to obtain and supply records of the appellant's service. In requesting verification the RO provided the NPRC information the appellant provided including his name, date of birth, parents' names, name and type of unit, and dates of service. The NPRC checked records and responded in August 2010 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." Because the service that the appellant reported has not been verified by the United States Armed Services, the RO determined that the appellant did not meet the verified service requirements for payment from the FVEC Fund. The RO therefore denied the appellant's claim for payment from the FVEC Fund. In statements submitted in 2010 through 2012 the appellant appealed for a payment from the FVEC Fund despite the lack of documentation of his service. He pointed to the service that he in fact performed. He noted that it was unfortunate that his service and that of others in his unit was not documented because their commandant was ambushed while trying to submit that documentation. He expressed that it was in the spirit of the FVEC Fund legislation to provide compensation despite the unfortunate loss of the documentation. The Board finds credible the appellant's accounts of his activities with the Bolo Battalion. The Board acknowledges and appreciates the value of the appellant's efforts during the War. The difficulty in this case is the unavailability of the required documentation of service. NPRC duly considered the appellant's application for VA benefits and certified that he had no documented qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. The Board cannot find a way to avoid being bound by NPRC's certification. In Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit found that if the service department does not verify an applicant's claimed service, the applicant's only recourse lies within the service department, not with VA. The Board acknowledges that denial based on lack of documentation of service is a particularly unfortunate outcome when documentation of service was prevented by the actions of enemy forces. Nonetheless, the Board is without authority to grant the appellant's claim on an equitable basis, and instead is constrained to follow the specific provisions of law. 38 U.S.C.A. § 7104 (West 2002 & West. Supp. 2012); Harvey v. Brown, 6 Vet. App. 416 (1994). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). This case turns on whether the appellant has recognized status as a veteran for purposes of entitlement to the United States veterans benefit that he seeks. The Court has indicated that VCAA requirements apply to veteran status as well as other elements of a claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Prior to denying the appellant's claim the RO did not notify him how veteran status could be substantiated. The RO later informed the appellant, however, regarding how veteran status is determined. In the August 2010 letter notifying the appellant of the denial of payment from the FVEC Fund, the RO informed the appellant that NPRC was unable to verify that the appellant had recognized guerilla service or other qualifying service. The RO also informed the appellant that decisions concerning verification of military service are the responsibility of NPRC and are binding on VA, which has no authority to change or amend the findings. The claims file contains information from the appellant regarding his service and NPRC's report on the outcome of a search for documentation of the appellant's service. The appellant has repeatedly stated that his service is not documented, because enemy forces intercepted or destroyed the papers meant to document the service of the men in his guerilla unit. As VA relies on military records for veteran status determination, there is no indication that it is possible to develop additional evidence pertinent to veteran status in this case. The Board finds that the appellant was notified and aware of the evidence needed to substantiate the claim on appeal, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant, VA, and the United States Armed Forces, in obtaining such evidence. The appellant has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the appellant's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claim on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER The appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund and the claim is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs