Citation Nr: 1329341 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 12-00 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC). WITNESSES AT HEARING ON APPEAL The appellant and his daughter-in-law ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO). The appellant presented testimony before the undersigned Veterans Law Judge (VLJ) in January 2013. A transcript of that hearing has been associated with the appellant's claims file. The appellant's appeal was remanded by the Board in April 2013 for additional development. The RO conducted the additional development requested and associated all results with the appellant's claims file. Accordingly, the Board finds that there has been substantial compliance with the directives of the April 2013 remand in this case, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). 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 service department has certified that the appellant did not have 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. CONCLUSION OF LAW The requirements for eligibility to a one-time payment from the Filipino Veterans Equity Compensation fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186- 87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The notice requirements apply to all elements of a claim. See generally Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of the notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b). A letter was sent to the appellant in June 2012 explaining the elements necessary to establish veteran status. Although the letter was not sent to the appellant prior to the initial adjudication of the claim, the claim was readjudicated in a June 2013 supplemental statement of the case. Based on this, a reasonable person could be expected to understand from the notice what was needed to show entitlement to payment from the Filipino Veterans Equity Compensation (FVEC) fund. See Sanders, 487 F.3d at 889; Prickett, 20 Vet. App. at 376. Accordingly, VA's duty to notify has been satisfied. VA's duty to assist the appellant has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). VA requested verification of the appellant's service from the National Personnel Records Center (NPRC) in August 1970, August 2010, June 2012, September 2012, and May 2013. VA provided the relevant information submitted by the appellant to the NPRC for consideration in determining veteran status. See Capellan v. Peake, 539 F.3d 1373, 1381 (2008) (noting that the duty to assist requires that where new evidence is submitted by a claimant, it should be submitted for verification of service from the service department pursuant to 38 C.F.R. § 3.203(c)). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The appellant was afforded a hearing before the Board in January 2013. During that hearing, the VLJ noted that the requirements for establishing entitlement to a one-time payment under the FVEC were discussed with the appellant, explained why the appellant's claim was denied, and assisted the appellant by trying to identify any additional information or evidence which might substantiate his claim. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the appellant. The hearing focused on the elements necessary to substantiate the claim, and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. The appellant has not suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007). A 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 (ARRA), Pub. L. No. 111-5 (enacted February 17, 2009). Any claim under ARRA must be submitted within one year from the date of the enactment of the Act. The application for the claim shall contain the information and evidence VA requires. ARRA § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). The appellant filed his initial claim in February 2009, within one year of the enactment date, and submitted the requested information. Accordingly, the only issue on appeal is the appellant's veteran status. A claimant is eligible for the one-time payment where that person served and was discharged under conditions other than dishonorable (1) 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 (2) in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). ARRA § 1002(d). Where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747, 748-49 (Fed. Cir. 1997). To establish entitlement to VA benefits, VA may accept evidence of service such as a DD-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: the document is issued by the service department; the document contains needed information as to length, time, and character of service; and VA determines the document is genuine and the provided information is accurate. 38 C.F.R. § 3.203(a). Where the evidence submitted does not meet these requirements, VA must request verification of service from the service department. 38 CFR § 3.203(c); Soria, 118 F.3d at 749 (stating that a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service). Where certification is required, the service department's decision on the matter is conclusive and binding on VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Finally, veteran status for purposes of the Immigration Act of 1990 does not apply to claims for VA benefits because the Act permits claimants to rely on Philippine-generated documentation of veteran status, but Title 38 of the United States Code and accompanying regulations require service department verification. Soria, 118 F.3d at 749. Here, the appellant asserts that he is a veteran because he was a recognized guerilla in the service of the Armed Forces of the United States. He contends that he served in Headquarters Company, 1st Battalion, Batute Infantry Regiment, from September 30, 1943 to August 19, 1947. In a December 2010 notice of disagreement, the appellant reported that he served with the 4th Battalion, Ponce Regiment, Bulacan Military Area in Baliuag, Bulacan, Philippines. In support of his claim, the appellant has submitted an August 1981 certification from the Philippines Veterans Affairs Office which states that the appellant's son was approved for education benefits based upon the appellant's military service during World War II as a recognized guerilla. The document indicates that the appellant was assigned to the Bulacan Military Area. Another August 1981 certification from the Philippines Veterans Office indicates that the appellant is a veteran of World War II/Philippine Revolution who served with Bulacan Military Area, and that his claim for educational benefits was approved. An August 2001 certification from the Office of the Adjutant General for the Armed Forces of the Philippines notes that the appellant was a recognized guerilla with the 45 1st Battalion, M. Ponce Regiment, and that he was inducted on September 30, 1943 and discharged on August 19, 1947. His unit was identified as Headquarters Company, 1st Battalion, Supply Roster, Batute Infantry Regiment, Bulacan Military Area. An Affidavit for Philippine Army Personnel received in October 2010 states that the appellant was engaged in guerilla activities beginning in September 1943 and that he was attached to 1st Battalion, Headquarters Company, Batute Regiment. The affidavit reveals that he served with the 1st Battalion, M. Ponce Regiment, in the Bulacan Military Area in Baliwag, and that his unit was attached to the 342nd Infantry, 86th Division. He was separated from his unit in October 1945. The appellant also submitted numerous lay statements in support of his claim. In a June 1947 statement, R.B. reported that he was the former 1st Lieutenant with the Batute Infantry Regiment, guerilla outfit and that he personally knew the appellant as one of his personnel in that company. A July 1947 statement from S.S. reports that he was the organizer and battalion commander of the 1st Battalion, M. Ponce Regiment (Guerilla) Bulacan Military Area stationed at Baliwag, Bulacan and that the appellant was inducted into his unit and became an active member of the Headquarters Service. In a July 1947 letter, R.B. reported that the appellant's outfit, the Batute Infantry Regiment, did not receive any disposition order from the 342nd Infantry, 86th Division, to which the appellant's unit was attached and that, due to that fact, the appellant could not obtain a qualifying statement as to why he was not processed and discharged at the "Repl. Bn." A September 1947 letter from H.S. reflects that he served as Captain and Executive Officer of the 1st Battalion, Batute Infantry Regiment and that he personally knew the appellant as a member of his Battalion Headquarters. In a January 1948 statement, F.D. noted that he was the former regimental physician of M. Ponce Regiment in the Bulacan Military Area and that he personally knew the appellant, who was under his treatment. A February 1949 statement from N. S. reveals that he served with the 1st Regiment Infantry with the Batute Infantry Regiment in the Bulacan Military Area stationed with the 342nd Infantry, 86th Division, and that he knew the appellant personally to be a member of the Headquarters Company, 1st Battalion. In a November 2010 statement, T.B. reported that he is a recognized guerilla and eligible World War II Philippine veteran formerly assigned at 4th Battalion Ponce Regiment, Bustos, Military Area, Bustos, Bulacan, Philippines, and that he personally knew the appellant to be a recognized guerilla and eligible World War II Philippine veteran. He noted that he and the appellant both served with the same unit and that his claim for a lump sum payment under the FVEC was granted, but that the appellant's claim was denied. VA requested that the NPRC determine the appellant's veteran status based on the information provided in August 1970, August 2010, June 2012, September 2012, and May 2013. Searches were conducted based on all potential spellings of the appellant's name, including "Primitivo C. Mempin," "Primitivo Collantes Mempin," "Primitivo Collantes Memphin," "Primitivo Collantes Minpin," "Primitivo Collantes Menpin," "Primittivo Collantes Mempin," "Primittivo Collantes Memphin," "Primittivo Collantes Minpin," Primittivo Collantes Menpin," and "Primittivo Mempin." Searches were conducted using all reported units of assignment. In a November 1970 response and a September 2010 response, the NPRC determined 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 September 2012, December 2012, and June 2013 responses, the NPRC stated that there was no change warranted in the prior negative determination. In Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit held that, pursuant to both 38 C.F.R. § 3.203(c) and VA'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. As noted above, the appellant has submitted service documents reflecting his assertion of service in the recognized guerrillas of the Philippine Commonwealth Army. The information was sent to the NPRC to ensure compliance with Capellan. However, the NPRC has concluded that the appellant did not have service as a member of the Philippine Commonwealth Army, to include the recognized guerrillas, in the service of the United States Armed Forces. The appellant has submitted no additional documentary evidence; thus, there is no duty under Capellan to obtain an additional certification of service. Id. The documents submitted by the appellant fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service because there was no DD-214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge issued by the service department. The documents were issued by a branch of the Philippine government, the Philippine Veterans Affairs Office, friends and comrades of the appellant, or were directly from the appellant. Additionally, the service department has determined there is no qualifying military service based upon the information submitted by the appellant, the lay statements provided, and the information contained in the certification from the Philippine Office of the Adjutant General and the Philippine Veterans Affairs Office. VA is bound by the service department's determination. Duro, 2 Vet. App. at 532. If the service department does not verify the claimed service, the claimant's recourse lies with the relevant service department, but not with VA. Soria, 118 F.3d at 749. As the appellant's service does not meet the criteria described, the appellant does not meet the basic eligibility requirements for a one-time payment from the FVEC fund, and the claim must be denied. ORDER Eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs