Citation Nr: 1330184 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-27 510 ) 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 Bernard T. DoMinh, Counsel INTRODUCTION The appellant asserts that he had qualifying service from August 1944 to September 1945 as a member of a recognized Filipino guerilla force engaged in the insurgency against the Japanese occupation of the Philippines in World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, The Republic of the Philippines, which denied the appellant's claim for Filipino Veterans Equity Compensation for failure to establish eligibility. In his VA Form 9 substantive appeal, which was received by VA in June 2010, the appellant had requested to be scheduled for a hearing at a VA Regional Office before a traveling Veterans Law Judge from the Board. The requested hearing was duly scheduled to be held at the Oakland, California, VA Regional Office in August 2013, and notice of this hearing was provided to the appellant via correspondence dated in July 2013, which was sent to his last known mailing address. However, the claims file indicates that the appellant failed to appear for this hearing and did not timely show good cause as to why he was unable to attend his hearing and request a new hearing. His hearing request is therefore deemed to have been withdrawn. 38 C.F.R. § 20.702(d) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2013). FINDING OF FACT The National Personnel Records Center (NPRC) has certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States. CONCLUSION OF LAW The appellant does not have recognized active military service as required to establish eligibility for Filipino Veterans Equity Compensation Fund benefits. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)(1) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). As for the appellant's claim of basic eligibility for a one-time payment from the FVEC Fund, the United States Court of Appeals for Veterans Claims (Court) has held that in cases where the appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated to inform the appellant of the information or evidence necessary to prove the element of veteran status. Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) (as veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of notice concerning proof of veteran status is necessary in most, if not all, cases). Here, although the appellant was not provided with the required notification prior to the initial adjudication of his claim, the Board finds that no prejudice has resulted. In a January 2010 notification letter, the RO explained what the evidence must show to support a claim for entitlement to FVEC and that verification of military service was the responsibility of the National Personnel Records Center (NPRC) and its findings were binding on VA. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 ("The Federal Circuit's decision in Soria recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive and binding on VA"); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). His understanding of such is shown in his written responses and pleadings that were submitted via correspondence during the pendency of this appeal, which include his basic assertion that he had qualifying service as a member of the Filipino irregular forces engaged in the resistance against the Japanese occupation of the Philippines during the Second World War. In addition to his written contentions attesting to his having had qualifying military service during World War II for purposes of establishing eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund, the appellant submitted for inclusion in the record signed and notarized statements, dated in August 1976, from himself and several of his witnesses, in which the parties attest that the appellant served in the "Vera's Tayabas Guerillas" from August 1944 to September 1945. Lastly, the claims file reflects that VA has inquired the NPRC to verify whether or not the Veteran had qualified service in the Armed Forces of Commonwealth of The Republic of the Philippines, or recognized guerillas of the Philippines, during World War II and the NPRC's definitive response to this query, dated in November 2009, has been associated with the evidence. Nevertheless, as will be discussed below, the issue presented is solely one of statutory interpretation and 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); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim for a benefit to which the claimant is not entitled as a matter of law). The facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to the type of service that qualifies an individual for eligibility for compensation under the Filipino Veterans Equity Compensation Fund. VA's duties to notify and assist are thereby generally inapplicable. The appellant seeks a one-time payment from the Filipino Veterans Equity Compensation Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009). In order to qualify for the benefit, there must be affirmative evidence that the claimant is a "veteran" for the purpose of benefits administered by VA, which requires that the claimant have qualifying military service. In Section 1002(d) of the statute, an eligible person has qualifying service if he 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, including among such military forces organized guerrilla forces; and was discharged or released from service under conditions other than dishonorable. For the purpose of establishing evidence of service, 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: The evidence is a document issued by the service department; and the document contains needed information as to length, time and character of service; and in the opinion of VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a) (2013). When the claimant does not submit evidence of service or the evidence submitted does not meet the stated requirements, VA will request verification of service from the service department. 38 C.F.R. § 3.203(c) (2013). The Court has held that the findings of the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces. See Duro v. Derwinski, 2 Vet. App. 530 (1992). As previously stated, the appellant reported that during the Japanese military occupation of the Philippines in World War II, he was a member of the "Vera's Tayabas Guerillas," which he purports to have been an irregular guerilla force that engaged in armed insurgent actions against Japanese occupational forces. In support of his claim, he submitted signed and notarized affidavits from himself and several witnesses, attesting to such service from August 1944 to September 1945. The appellant essentially contends that VA should accept this as proof in itself of his qualifying service for purposes of eligibility to one-time payment from the Filipino Veterans Equity Compensation Fund. However, in a report dated November 2009 that was submitted in response to an inquiry by VA, the NPRC definitively certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Based upon the evidence of record, the Board finds the documents of record fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The correspondence and evidentiary submissions associated with the claims file that were presented by the appellant in support of his claim do not otherwise include any official documents of the appropriate United States service department and may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including the one-time payment from the Filipino Veterans Equity Compensation Fund. The relevant provisions of the law and regulations in regard to determining the appellant's eligibility for Filipino Veterans Equity Compensation Fund benefits under the American Recovery and Reinvestment Act have been adequately considered. For the purpose of ascertaining whether a claimant has the requisite military service the provisions of 38 C.F.R. § 3.203 have been followed. The submitted evidence does not constitute evidence issued by a service department of the United States military. The appellant has provided no further evidence that would warrant a request for recertification from the service department. See Sarmiento v. Brown, 7 Vet. App. 80 (1994) (recertification with evidence of erroneous spelling of name); Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (recertification when there is newly received relevant evidence since the negative certification). Notably, the affidavits received in February 2010, which was after the NPRC provided its November 2009 certified response, contained the same identifying information with respect to the appellant as that previously submitted by the appellant in his July 2009 claim. No alternate spellings of the appellant's name were provided. The appellant is not legally entitled to compensation from the Filipino Veterans Equity Compensation Fund under Section 1002 of the American Recovery and Reinvestment Act, Pub. L. No. 111-5. As there is no legal basis to substantiate the claim, it must be denied. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs