Citation Nr: 1334053	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  13-15 039	)	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

Patrick J. Costello, Counsel



INTRODUCTION

This matter comes to the Board of Veterans' Appeals, hereinafter the Board, on appeal from a September 2010 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the appellant's claim for one-time payment from the Filipino Veterans Equity Compensation Fund on the basis that she had no valid military service.  

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).


FINDINGS OF FACT

The service department 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 United States Armed Forces during World War II. 


CONCLUSION OF LAW

The appellant did not have the requisite service to entitle her to payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 5103, 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 FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the appellant's claims file.  Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address its reasons for rejecting evidence favorable to the appellant).

Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

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).

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 (2007) (since 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).

In this case, although the appellant was not provided with the required notification prior to the initial adjudication of her claim, the Board finds that no prejudice has resulted.  In the September 2010 decision letter, the RO explained that verification of military service was the responsibility of the National Personnel Records Center (NPRC) and that its findings were binding on VA.  Because NPRC had certified that the appellant had no 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, she was not legally entitled to payment from the Filipino Veterans Equity Compensation Fund.

After affording the appellant the opportunity to submit additional evidence and argument, the RO reconsidered his claim in the November 2010 rating decision, the January 2013 statement of the case, and the July 2013 supplemental statement of the case.  Medrano v. Nicholson, 21 Vet. App. 165 (2007); Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (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).

Moreover, to the extent that notification provided to the appellant did not include specific information regarding veteran status, the Board finds that error is not prejudicial.  The service department has twice 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 during World War II.  VA is bound by that certification.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997); Palor v. Nicholson, 21 Vet. App. 325 (2007); Duro v. Derwinski, 2 Vet. App. 530 (1992).

In light of the binding certifications, any notification error is non-prejudicial as the appellant is not entitled to benefit as a matter of law.  Valiao v. Principi, 17 Vet. App. 229 (2003).

VA also has a duty to assist claimants in the development of a claim.  That includes assisting the claimant in procuring service medical records and other relevant treatment records and providing a VA examination when necessary.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 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 twice 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 during World War II.  The initial negative certification was in August 2010.  After the appellant submitted additional information, the RO again contacted the service department in October 2010, and requested reverification of service for the appellant.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (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 both instances the service department responded 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 during World War II.  Since the second negative certification, the appellant has produced no additional information which would warrant a further request to NPRC.  Additionally, because of 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 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2013).

The Board finds that 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.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2013).  The Board further notes that the United States Court of Appeals for Veterans Claims, hereinafter the Court, has held that the notice requirements are not applicable to matters in which the law, and not the evidence, is dispositive.  Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 

In January 2010, the appellant submitted an application for one-time payment from the Filipino Veterans Equity Compensation Fund.  She reported that she was on active duty from April 1942 to June 1946, and that she served in the "WAS Bohol Area Command."  

In September 2010, the RO denied the appellant's claim on the basis that the service department had certified that she did not have the requisite military service to establish eligibility therefor.  The appellant appealed that determination, noting that she had served honorably and that she had received "veterans" benefits from the Government of the Philippines.  The appellant then submitted numerous documents that he contended supported her claim for benefits.

Subsequently, the RO contacted the service department and requested further verification of the appellant's reported military service.  In the second request, it was noted that the appellant's unit of assignment was "Women's Auxiliary Service (WAS) Bobol Area Command" or "Carmen WAS Guerillas, Bobol Area Command."  NPRC again responded 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.  That negative response was forwarded back to the RO in October 2010.

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. Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941).  However, only the service of some Filipino veterans entitles them to receive full benefits administered by VA.  38 U.S.C.A. § 107 (West 2002).

On February 17, 2009, the American Recovery and Reinvestment Act, included a provision for the creation of the Filipino Veterans Equity Compensation Fund, providing one time payments to eligible persons.  Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).  An eligible person is 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538).  Additionally, 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).

The Act further directed VA to administer the provisions in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and to apply the definitions in 38 U.S.C.A. § 101 in the administration of the provisions, except to the extent otherwise provided.  Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009).

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 (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) (2013).

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) (2013).  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).

The findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the United States Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).

NPRC has twice 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.  NPRC has searched for the appellant in various military units and has also attempted to confirm her service via the use of the name given on this appeal.  In all cases, the NPRC has not been able to certify the appellant's service.  VA is bound by that certification.

The Board has carefully considered the documentation submitted by the appellant, but notes that it fails to satisfy the requirements as acceptable proof of service.  38 C.F.R. § 3.203 (2013).  The documents submitted by the appellant do not contain the necessary information to establish entitlement to the benefit sought.  Therefore, those 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 Filipino Veterans Equity Compensation Fund.  In any event, the Board notes that the service department has considered the information contained in that documentation and twice 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 that certification.  If the United States service department does not verify the applicant's claimed service, the applicant's only recourse lies with the relevant service department, not VA.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008).

As the service department has certified that the appellant did not have the requisite service to qualify her for payment from the Filipino Veterans Equity Compensation Fund, the appeal must be denied.  Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement.  Sabonis v. Brown, 6 Vet. App. 426 (1994). 


ORDER

Entitlement to 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