Citation Nr: 1330508 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 13-20 242 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in a May 30, 2013, Board decision that determined that the Veteran was not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The moving party alleges that he served in recognized guerilla forces from October 1943 to October 1945. This matter arises as an exercise of the Board's original jurisdiction under 38 U.S.C.A. § 7111 (West 2002) pursuant to a June 2013 motion by the moving party alleging clear and unmistakable error in an May 30, 2013 Board decision which denied entitlement to entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. Good or sufficient cause having been shown, the Veteran's motion has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2011). FINDINGS OF FACT 1. In decision dated May 30, 2013, the Board denied the moving party's claim of entitlement to a one-time payment from the Filipino Veterans Compensation Fund. 2. The moving party has not alleged an error of fact or law in the May 2013 Board decision that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. CONCLUSION OF LAW The requirements for revision of the Board decision on the grounds of clear and unmistakable error have not been met. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1401, 20.1403, 20.1404 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The moving party contends that the May 2013 Board decision was clearly and unmistakably erroneous in determining that the moving party was not eligible for a one-time payment from the Filipino Veterans Compensation Fund. A motion for reversal or revision of a prior Board decision due to a clear and unmistakable error is not a claim but a collateral attack on a prior decision. Thus, one requesting such reversal or revision is not a claimant within the meaning of the 38 U.S.C.A. § 5103 and § 5103A; and, consequently, the notice and development provisions of the statutes and regulations do not apply in adjudications based on an allegation of clear and unmistakable error. Livesay v. Principi, 15 Vet. App. 165 (2001). Accordingly, no further discussion regarding the duty to notify and assist is required. While the law vests the Board with original jurisdiction to determine whether clear and unmistakable error exists in a prior final Board decision, the shape and expanse of that review is controlled by statute and regulations. Motions for review of prior Board decisions on the grounds of clear and unmistakable error are adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400-1411. The provisions of 38 C.F.R. § 20.1403 define what constitutes a clear and unmistakable error and what does not, and provides as follows: (a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. (b) Record to be reviewed. (1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. (2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. (c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. (d) Examples of situations that are not clear and unmistakable error. (1) Changed diagnosis. A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision. (2) Duty to assist. The Secretary's failure to fulfill the duty to assist. (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. (e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. Authority 38 U.S.C.A. §§ 501(a), 7111. The moving party must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Nonspecific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement to set forth clearly and specifically the alleged clear and unmistakable error in a Board decision. 38 C.F.R. § 20.1404(b). In addition, neither the "benefit of the doubt" rule of 38 U.S.C.A. § 5107(b) nor the provisions of reopening claims on the grounds of new and material evidence under 38 U.S.C.A. § 5108 apply to motions based on an allegation of clear and unmistakable error. 38 C.F.R. § 20.1411 (a), (b). Prior decisions issued by the United States Court of Appeals for Veterans Claims (Court) with regard to clear and unmistakable error in RO rating decisions provide guidance in determining whether clear and unmistakable error exists in a Board decision. "It must be remembered that clear and unmistakable error is a very specific and rare kind of error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). As stated by the Court, in order for clear and unmistakable error to exist: (1) "[e]ither the correct facts, as they were known at that time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when the decision was made. 38 C.F.R. § 20.1403(b)(1) . The Board's Rules of Practice further provide that, with limited exceptions not applicable here, no new evidence will be considered in connection with the disposition of the motion. 38 C.F.R. § 20.1405(b). Under the American Recovery and Reinvestment Act, 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, Pub. L. No. 111-5 (enacted February 17, 2009). Section 1002 (d) of the American Recovery and Reinvestment Act 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. Section 1002(j)(2) of the law also provides that VA will administer its provisions in a manner consistent with VA law including the definitions in 38 U.S.C.A. § 101 except to the extent otherwise provided in the statute. In order to show entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund, a claimant must satisfy the criteria required for establishing basic eligibility for legal entitlement to VA benefits. In order to be eligible for benefits administered by the VA, the evidence must establish that the individual seeking benefits is a veteran. The term "veteran" is defined in 38 U.S.C.A. § 101(2) as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. The provisions of 38 U.S.C.A. § 107(a) state that service 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, will not be deemed to have been active military, naval, or air service except for specified benefits including disability compensation benefits authorized by chapter 11, title 38, United States Code. Under 38 C.F.R. § 3.40, certain service with the Commonwealth Army of the Philippines, with the Philippine Scouts, and guerilla service is included for VA benefits purposes. These include service of persons enlisted under section 14, Public Law 190, 79th Congress (Act of October 6, 1945). Under 38 C.F.R. § 3.203(a), 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) The evidence is a document issued by the service department. 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 departments. 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 Spence v. West, 13 Vet. App. 376 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). As noted in the May 2013 Board decision, the moving party filed a claim for a one-time payment from the Filipino Veterans Equity Compensation Fund, contending that he had served in the recognized guerilla forces from October 1943 to October 1945. This information, including his name, as spelled on the claim, was forwarded to the service department for verification. In addition, it was noted that the moving party's name was listed in page #2 file #402 of the Reconstructed Recognized Guerrilla Roster maintained by Manila RO. In November 2009, the service department certified that "[s]ubject has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces." Additional evidence was received by VA. An AGO PA Form 23, Affidavit for Philippine Army Personnel, was then forwarded to the service department to attempt to reverify the alleged service. The RO noted at this time that the movant's name was not on the Reconstructed Recognized Guerrilla Roster maintained by Manila RO. In October and December 2010, the service department again certified that "[s]ubject has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces." In May 2013, the Board decision denied the moving party's claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. The Board acknowledged that the moving party had submitted multiple documents in support of his claim; however, he did not submit a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1). The Board noted that all of the documents submitted by the appellant failed to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service as none of the documents were official documents of the appropriate United States service department. The Board noted the November 2009, October 2010 and December 2010 findings of the service department. The moving party has argued that the May 2013 Board decision is clearly and unmistakably erroneous because it followed the certifications by the service department when the evidence of record, including the AGO PA Form-23, showed that he had service. Based upon the evidence of record at the time of the 2013 decision, the Board's decision was not undebatably erroneous. Based on certifications from the service department that the moving party had not had service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces, the Board then found that the moving party was not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund. This conclusion was not clearly erroneous. While the movant had submitted AGO PA Form 23, the findings of the service department regarding whether he actually did serve are binding on VA. Duro. Because the movant is not a "veteran," he cannot be entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. As such, the Board finds that the moving party has not alleged an error of fact or law in the May 2013 Board decision that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. As such, the motion for revision of the May 2013 Board decision on the basis of a clear and unmistakable error must be denied. ORDER The motion for reversal or revision of the December 2008 Board decision on the grounds of clear and unmistakable error is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs