Citation Nr: 1334593	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  11-24 456	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to a one-time payment from the Filipino Veteran's Equity Compensation (FVEC) Fund.


REPRESENTATION

Appellant represented by:	National Veterans Organization of America, Inc.


WITNESSE AT HEARING ON APPEAL

Appellant and M.B., his daughter




ATTORNEY FOR THE BOARD

D.J. Drucker, Counsel


INTRODUCTION

The Veteran had verified active service in the United States Navy from December 1945 to January 1967.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a letter decision issued in July 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  In that action, the RO denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund on the basis that he had no valid military service in the Philippine Commonwealth Army, recognized guerillas, or the New Philippine scouts. 

In July 2013, the Veteran, sitting at the RO, testified during a hearing conducted via video conference with the undersigned.  He was not represented by his accredited representative at that time but expressed a preference to proceed with the hearing.  See e.g., Board hearing transcript at page 6.  See 38 C.F.R. § 20.701 (2013).  A transcript of the hearing is of record.  


FINDING OF FACT

The service department has certified that the Veteran 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 Veteran did not have the requisite service to entitle him to payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.203 (2013); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 

Under the VCAA, 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. 2013); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The United States Court of Appeals for Veterans Claims (court) has held that, in cases where a claimant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated by the VCAA to provide notice of the information or evidence necessary to prove the element of veteran status.  Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) ("[s]ince 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").

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.  In the July 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 the NPRC 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, he 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 July 2011 statement of the case (SOC).  See 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) (to the effect that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a SOC, is sufficient to cure a timing defect).

In an April 2012 letter, the RO notified the Veteran of what the evidence must show to support his claim for entitlement to the one-time FVEC payment.

The RO reconsidered the Veteran's claim in the September and November 2012 supplemental statements of the case.  See Medrano v. Nicholson; Overton v. Nicholson; and Prickett v. Nicholson, supra.

Further, in Bryant v. Shinseki, 23 Vet App 488 (2010), the court held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues, including elements of the claim that have not been substantiated, and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, this Veterans Law Judge outlined the issue on appeal and suggested that any evidence tending to show that the Veteran had the requisite service as a member of the Commonwealth Army of the Philippines would be helpful in substantiating the claim.

Under the VCAA, VA also has a duty to assist claimants in the development of a claim.  This 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. 2013); 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.  As set forth in more detail below, the service department has certified that the Veteran 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. 

The initial negative certification was in June 2010.  After the appellant submitted additional information, the RO again contacted the service department and requested 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 April 2012, 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 U.S. Armed Forces during World War II.  Since that second negative certification, the appellant has produced no additional information which would warrant a further request to NPRC.  Additionally, as the issue on appeal does not involve a medical question; the Board finds that there is no need for a VA medical opinion or examination.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(4) (2013).

For the reasons set forth above, and given the facts of this case, 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. 2013); 38 C.F.R. § 3.159(c) (2013).

II. Factual Background

In May 2009, the Veteran submitted a claim for a one-time payment from the Filipino Veterans Equity Compensation Fund.  It was contended that he served as a recognized guerrilla under Lt. Patricia and Lt. Brillante.  Dates of service were purported to be 1942 to 1943. 

In July 2010, the RO denied the Veteran's claim on the basis that the service department certified that he did not have the requisite military service to establish eligibility therefor.  The appellant appealed this determination, noting that, in 1942, he was recruited by the former Armed Forces of the Philippines, Paniqui Tarlac, Philippine Islands.  He recalled that he was recruited by Lieutenants (Lts.) Patricio and Brillante, with the coordination of higher ranking officers of the Philippine Armed Forces, whom he identified as Captains Millado and Navaro, and Lt. Robles.  The appellant noted now-deceased task force members who purportedly served with him in the Guerilla Forces.  He pointed to his history of service in the United States Navy, from December 1945 to January 1967.  

To support his claim, the Veteran submitted numerous documents that he contended supported his claim for benefits. 

Subsequently, the RO contacted the service department and requested further verification of the Veteran's reported military service.  The RO forwarded to the NPRC copies of all of the documents provided by the appellant.  In April 2012, the NPRC once 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.

During his July 2012 Board hearing, the Veteran's daughter testified that he served with the Filipino guerillas in 1942 and 1943 and told some stories of his experiences while she was growing up.  See Board hearing transcript at page 2.  The appellant testified that he served in three wars, with Japan, Korea, and Vietnam, and was a guerilla during the Japanese occupation.  Id. at 4.  He said he was eighteen years old when the Japanese attacked the town of Pangasinan.  Id. 

III. Applicable Law

On February 17, 2009, the President of the United States 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 includes a provision for the creation of the Filipino Veterans Equity Compensation Fund, providing one time payments to "eligible persons" in the amount of $9,000.00 (US dollars) for non-United States citizens, or $15,000 (US dollars) 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.

For the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a Certificate of Release or Discharge from Active Duty (DD Form 214), 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) (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 v. Derwinski, 2 Vet. App. 530, 532 (1992); see also Dacoron v. Brown, 4 Vet. App. 115 (1993).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) reached the same conclusion.  See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997) (noting that "[b]ecause the United States Department of the Army refused to certify [the claimant's] alleged service in the Philippine Army, the VA properly refused to consider his claim for veterans' benefits based on that service").

IV. Legal Analysis

The NPRC, searched service department records, and twice certified that the Veteran 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 Veteran, but notes that they do not satisfy the requirements of 38 C.F.R. § 3.203(a), because they were not issued by the service department.  They are, therefore, not acceptable proof of service required for 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, nonetheless, repeatedly 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").

The service department certified that the Veteran did not have the requisite service to qualify for payment from the Filipino Veterans Equity Compensation Fund, and there is no service department evidence of such service; the weight of the evidence is against the claim and it is denied.  38 U.S.C.A. § 5107(b) (West 2002).


ORDER

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.




____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs