Citation Nr: 1334582 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-04 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The appellant contends he served as a recognized guerilla as a part of the United States Army Forces in the Far East (USAFFE). This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which determined that the appellant did not have qualifying service to be eligible for the one-time payment from the Filipino Veterans Equity Compensation Fund. The appellant was scheduled to appear at a Travel Board hearing in February 2013. He failed to appear at the hearing and did not provide a reason for his failure to appear. Moreover, he did not request that it be rescheduled. As such, his hearing request is deemed withdrawn. 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 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 FEVC fund are not met. 38 U.S.C.A. § 501(a) (West 2002); 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 Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise an appellant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist an appellant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. This case relates to eligibility for a one-time payment from the FVEC fund, which is governed by the American Recovery and Reinvestment Act of 2009. The United States Court of Appeals for Veterans Claims (Court) has held that, in cases where the claimant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated by the VCAA 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) (because "veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of VCAA notice concerning proof of veteran status is necessary in most, if not all, cases."); Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008) (noting 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 to be submitted to the service department for review). In this case, 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. Specifically, the RO sent the appellant a letter in May 2012 advising him that VA was seeking to verify his service. The letter also indicated that he could speak with a Veterans Service Representative and could appoint a service organization or representative to assist him with his claim. The claim was subsequently readjudicated in an August 2013 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case). Moreover, the law, not the facts, are dispositive of this appeal, and the duties to notify and assist imposed by the VCAA are inapplicable to this claim. See Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 2-2004 (March 9, 2004); see also 38 C.F.R. § 3.159 (d) (noting VA will refrain from or discontinue providing assistance in obtaining evidence when the application indicates there is no reasonable possibility that assistance would substantiate the claim, including circumstances where the claimant is ineligible for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility). As set forth in more detail below, the service department has certified that the claimant 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. 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). In light of the binding certification, any VCAA error is non-prejudicial, as the appellant is not entitled to benefit as a matter of law. See Valiao v. Principi, 17 Vet. App. 229, 232 (2003); see also Palor, 21 Vet. App. at 332 ("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 [the service department's] refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error."). VA has obtained certification from the service department relevant to the appellant's allegations of military service; he has submitted relevant service department and Philippine Veterans Affairs Office documents. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file. The appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. The appellant seeks entitlement to the one-time FVEC payment. Under the recently enacted American Recovery and Reinvestment Act, a new 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 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II. Section 1002 (c)(1) provides that the Secretary may make a payment from the compensation fund to an eligible person who, during the one-year period beginning on the date of the enactment of this Act, submits to the Secretary a claim for benefits under this section. The application for the claim shall contain such information and evidence as the Secretary may require. Section 1002 (c)(2) provides that if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person. Section 1002 (d) provides that an eligible person is any person who 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. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies their service. Soria, 118 F. 3d at 749. In this case, the appellant contends that he served as a recognized guerilla and as part of the USAFFE between April 1942 and June 1946, and should therefore be entitled to the FVEC payment. It was noted that the appellant was listed on the Reconstructed Recognized Guerrilla Roster (RRGR) maintained at the Manila RO. The RO submitted the pertinent information to the National Personnel Records Center (NPRC) for verification. In August 2009, the NPRC initially 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. In June 2010, the appellant submitted records of military service from the Philippine government and a Barangay Certification. In September 2012, he submitted a statement from the Philippine Veterans Affairs Office. In March 2013, he submitted an affidavit from two alleged guerillas who stated the appellant served with them, and a different certification from the Philippine Army Adjutant General. He also submitted addition duplicates of already submitted documents. The Board notes that the certifying agency was provided with copies of the relevant nonservice-department records in making its January 2013, April 2013, and July 2013 determinations. See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008). Again, the NPRC certified that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Moreover, these service documents provided by the appellant do not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as it is not an official document of the appropriate United States service department or NPRC. Accordingly, it 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 FVEC. The appellant 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 NPRC has certified that he had no qualifying service. This verification is binding on VA such that VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet App. 530, 532 (1992). The proper course for any claimant, who believes there is a reason to dispute the report of the service department or the content of military records is to pursue such disagreement with the service department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Based upon the record in this case, the appellant had no qualifying service. He, therefore, does meet the basic eligibility criteria for establishing entitlement to the one-time payment from the FVEC. ORDER Legal entitlement to a one-time payment from the FVEC fund is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs