Citation Nr: 1334042 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 12-27 456A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The record indicates that the appellant had no recognized service. This appeal comes before the Board of Veterans' Appeals (Board) from adverse decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, in March 2010 and October 2010 that determined that the appellant did not have qualifying service to be eligible for a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. 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 service department has certified that the appellant had no qualifying 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 FVEC Fund have not been met. 38 U.S.C.A. §§ 101, 501(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.203 (2013); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist 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. 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). 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). 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 March 2010 notification letter sent to the appellant, the RO explained that verification of military service was the responsibility of the National Personnel Records Center (NPRC) and its findings were binding on VA. Because NPRC had certified that the appellant had no qualifying 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, he was not legally entitled to payment from the FVEC Fund. In addition, the requisite notification was sent to the appellant in letters dated June 2012 and January 2013. After affording the appellant the opportunity to submit additional evidence and argument, the RO reconsidered the appellant's claim in a September 2012 Statement of the Case (SOC) and in a supplemental SOC dated April 2013. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); Medrano v. Nicholson, 21 Vet. App. 165 (2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a Statement of the Case, is sufficient to cure a timing defect). The service department has in January 2010, September 2010, August 2012, December 2012 and March 2013 certified that the appellant had no qualifying 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. VA is bound by this certification. 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); Go v. Shinseki, 2013 WL 3388471 (C.A.Fed.). The Board acknowledges the Veteran's assertion that the records relied upon by the NPRC are insufficient due to the fact that there are missing records. See June 2013 statement in support of claim. The Board assumes that the Veteran is referring to the 1973 fire at the NPRC in St. Louis during which many records were lost. The Board also acknowledges the Veteran's assertion that he submitted the necessary evidence on his own. See id. A challenge to VA's reliance on certification from the NPRC was recently addressed in the Go case, which explained that only the NPRC can search the relevant service department records and which held that a service department's determination under 38 C.F.R. § 3.203(c) is "conclusive and binding on the VA." See Go, 2013 WL 3388471 at 1 (citing Soria, 118 F.3d at 749)). Given the decision in Go, it is clear that VA remains bound by the certification provided by the NPRC. In light of the binding certifications, any notification error is non-prejudicial as the appellant is not entitled to the benefit as a matter of law. See Valiao v. Principi, 17 Vet. App. 229 (2003); see also Palor, 21 Vet. App. at 332-33 ("Therefore, in assessing whether the appellant was prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status, the Court can conclude only that because the appellant is currently ineligible for VA benefits as a matter of law based on the [service department's] refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error"). VA also has a duty to assist claimants in the development of a claim. This includes assisting the claimant in procuring service treatment records and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). A review of the record indicates that all necessary evidence relative to this claim has been obtained and associated with the claims file. The service department has on five occasions certified that the appellant had no qualifying 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. The initial negative certification was in January 2010. After the appellant submitted additional information, the RO re-contacted the service department in requesting re-verification of service for the appellant. See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008) (holding that the duty to assist requires that 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). In requesting the recertification, the RO provided NPRC with additional pertinent evidence, including an Affidavit for Philippine Army Personnel (F-23); a Report of Physical Examination of Enlisted Personnel (WD AGO Form 38); Certification from the Office of the Adjutant General; Certificate of Honorable Discharge from Philippine Army; Application for Old Age Pension to Philippine Veterans Affairs Office; several identification cards and a passbook. In December 2012 and March 2013, the service department responded that no change was warranted in the prior negative certification and that the documents had no bearing on the determination. Since the most recent negative certification, the appellant has produced no additional information which would warrant a sixth request to NPRC. Additionally, given the nature of the issue on appeal, the Board finds that there is no need for a VA medical opinion. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). For the reasons set forth above, no further notification or development action is necessary on the issue now being decided. No reasonable possibility exists that any additional assistance would aid in substantiating the claim. 3 8 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). In addition, the Court has held that VA's duties to notify and assist are not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were called into the service of the United States Armed Forces of the Far East by President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that the service of certain Filipino Veterans does not entitle them to receive full benefits administered by the Secretary U.S. Department of Veterans Affairs. 38 U.S.C.A. § 107 (West 2002). On February 17, 2009, the President signed the American Recovery and Reinvestment Act, intended for "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization." See Pub. L. No. 111-5, 123 Stat. 115 (2009). The legislation included a provision for the creation of the FVEC Fund, providing one time payments to "eligible persons" in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (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 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 who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ). Additionally, the person must have been discharged or released from such service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009). The Act further directs the Secretary to "administer the provisions of this section in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and shall apply the definitions in section 101 of such title in the administration of such provisions, except to the extent otherwise provided in this section." Id. The Secretary is authorized by statute to prescribe "regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits" under the laws administered by VA." 38 U.S.C.A. § 501(a)(1) (West 2002). Pursuant to that authority, the Secretary has prescribed regulatory provisions governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. That regulation provides that for the purpose of establishing entitlement to benefits, 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, (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of the VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for ninety days for a line of duty disability. 38 C.F.R. § 3.203(b). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, the VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c) (2013). Findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro, 2 Vet. App. at 532. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has reached the same conclusion. See e.g. Soria, 118 Fed. F.3d at 749. As noted above, a recent decision by the Federal Circuit explained that only the NPRC can search the relevant service department records. See Go v. Shinseki, 2013 WL 3388471 (C.A.Fed.). NPRC certified in January 2010, September 2010, August 2012, December 2012 and March 2013 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. VA is bound by that certification. The Board has carefully considered the documentation submitted by the appellant, however, it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The documents submitted by the appellant were not issued by the service department, nor do they contain the necessary information to establish entitlement to the benefit sought. The documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA, including the one-time payment from the FVEC Fund. In addition, NPRC has considered the information contained in that documentation and nonetheless 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. Again, the Board is bound by this certification. See Capellan, 539 F.3d at 1376 (noting that "if the United States service department refuses to verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not the VA"). As the service department has certified that the appellant did not have the requisite service to qualify him for payment from the FVEC Fund, there is no legal entitlement and one-time payment is not warranted. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs