Citation Nr: 1330406 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-31 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to payment from the Filipino Veterans Equity Compensation (FVEC) fund. REPRESENTATION Appellant represented by: Veterans Equity Center WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appellant seeks to establish his status as a Veteran for purposes of payment from the FVEC fund. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. A review of the Virtual VA electronic records storage system and the Veterans Benefits Management System (VBMS) does not reveal any additional, pertinent documents which are not associated with the paper claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant seeks to establish his legal entitlement to payment from the FVEC fund. See American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). He claims eligible military service during World War II as a recognized guerilla with H Company, 2nd Battalion, 1st Pampanga Infantry Regiment of the Pampanga Military District, 86th Division of the United States Army. Section 1002 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II. 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. VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In addition, service department findings are binding on the VA for purposes of establishing service in the U.S. Armed Forces. Id.; see also Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). To date, the National Personnel Records Center (NPRC) has refused to certify that the appellant has qualifying military service. In accordance with its duty to assist, in February 2013, the RO requested the NPRC to re-certify the appellant's service based upon review of a November 2012 certification by the Armed Forces of the Philippines, Office of Adjutant General. See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008) (holding 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), 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). In March 2013, the NPRC responded to the RO by requesting a copy of "AGO PA Form 23 from TAG-PA." A March 20, 2013 RO letter requested the appellant to provide a certified copy of "Affidavit for Philippine Army Personnel (Form 23 Processing Affidavit), but the appellant did not respond. He testified in August 2013 that he had no further military documents in his possession. The November 2012 Certification from the Philippine Army reflects that an "F-23/F24 [is] not available." Thus, any further attempts to obtain this document would be futile. The appellant appeared at a Travel Board hearing in August 2013, at which time the Board assumed jurisdiction over the claims folder. Unfortunately, the NPRC has not formally determined whether the November 2012 certification by the Armed Forces of the Philippines, Office of Adjutant General, is sufficient to certify qualifying military service. Thus, the case must be remanded to complete the certification request. On remand, the Board finds that additional records not associated with the claims folder may be potentially helpful to substantiate the claim. The appellant has submitted portions of his naturalization application with the U.S. Immigration and Naturalization Service (INS). The appellant reports that the INS was able to verify his military service with the NPRC. The RO should assist the appellant in obtaining all records relating to his INS naturalization application and award, to include any certifications of military service received. Upon receipt of any additional, relevant records, the Board finds that another recertification request should be conducted to ensure that the NPRC's decision is based upon a complete record. The Capellan decision does not specify which documents must be sent to the NPRC, but does refer to the broad term "all relevant evidence." Capellan, 539 F.3d at 1382. To assist the RO/AMC, the Board identifies below the documents which must be sent to the NPRC by their content as well as the date received by VA. Finally, the Board observes that the NPRC's certification request has not been conducted under a service number. Here, there are no records referring to the appellant having a service number and the appellant has specifically denied having a service number. See INS Military Service Certification request dated June 28, 1993; VA Form 21-4138 (CF) (Statement in Support of Claim (Filipino Veterans Equity Fund)) received in March 2009. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Assist the appellant in obtaining all available documents from his INS naturalization application, to include any military certifications received. The appellant should be asked if he has a copy of a completed military certification from the INS in his possession. 2. After providing the appellant and his representative a reasonable opportunity to respond and obtaining any available INS documents, contact the appropriate service department and make a new request for verification of the appellant's claimed active duty service. The service department should be advised that the appellant reports not having a service number, and that the Philippine Army Adjutant General has certified that there is no available PA Form 23. Additionally, the service department should be provided copies of the following documents: a. an August 1970 Affidavit from Dr. V.E.C. received in March 2009; b. an August 1953 medical certificate from Dr. V.E.C. received in March 2009; c. a July 1947 Affidavit from A.T.I. received in March 2009; d. an affidavit from S.D.M. received in March 2009; e. a March 30, 1971 Certification from the Philippines Veterans Administration received in March 2009; f. a July 22, 1953 certification from the Armed Forces of the Philippines received in March 2009; g. a June 2008 letter from the Philippine Veterans Affairs Office received in March 2009; h. photocopies of the appellant's VA identification card, his drivers license and his senior citizen identification card received in March 2009; i. a copy of the appellant's 21-4138(CF) received in March 2009; j. VA Form 21-3101(JF) dated November 25, 2009; k. a photocopy of the appellant's U.S. Passport received in February 2010; l. a March 13, 2004 letter from the Atlanta Health Eligibility Unit received in February 2010; m. application materials from the appellant's naturalization application with INS received in February 2010; n. a May 1991 Certification from the Philippine Veterans Affairs Office received in February 2010; o. a July 22, 1953 Certification from the Philippine Army which also includes a photocopy of "Census of Filipino Veterans" received in February 2010; p. an Application for Old Age Pension received in February 2010; q. documents pertaining to the appellant's application for educations benefits received in February 2010; r. the appellant's notice of disagreement received in March 2010; s. the November 22, 2012 Certification from the Philippine Army Office of Adjutant General received in February 2013; t. the appellant's VA Form 9 received in July 2010; u. VA Form 21-3101(JF) dated in April 12, 2012; and v. a copy of the appellant's Travel Board hearing transcript dated August 2013. 3. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matter on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the RO should furnish the appellant and his representative an SSOC and an appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).