Citation Nr: 1329732	
Decision Date: 09/17/13    Archive Date: 09/25/13

DOCKET NO.  11-32 505	)	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 (FVEC).  



ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) from a January 2011 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.  

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 March 2013.  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 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 contends that he had Recognized Guerilla service.  

The appellant submitted multiple documents with his application, including: an April 1945 War Department Field Manual with personal writings; personal bank and identification cards and papers; July 2009 application to the Philippine Veterans Affairs Office (PVAO) for old age pension; a June 2009 statement of B.B. stating the appellant was one of his men in World War II; a June 2009 statement of M.N. stating the appellant was her friend and served in World War II; a July 2009 certificate from Armed Forces of the Philippines Office of Adjutant General stating he was on the guerilla roster; March 1946 affidavit of for Philippine Army Personnel stating he was a civilian guerrilla; May and June 2010 documents showing the appellant was a PVAO pensioner; September 1942 to April 1946 Reserve Army for Philippines Service Record; and a July 2011 Armed Forces of the Philippines Office of Adjutant General certification of recognized guerrilla service.  

The appellant also submitted several marriage and birth-related documents; a July 2009 document showing police clearance (no criminal record); and a July 2009 letter from his province showing residency and good character.  

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).  Also, 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).  

Here, the NPRC considered the appellant's evidence several times as it was submitted, including in January and December 2010; January 2011; and March 2013.  The March 2013 request and response statement shows all relevant documents regarding the appellant's claim were considered.  

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.  

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.  



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs