Citation Nr: 1335067	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  11-00 179A	)	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.


ATTORNEY FOR THE BOARD

M. J. In, Counsel


INTRODUCTION

This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines.

The appellant requested assistance in appointing a representative in his VA Form 9.  In an October 2012 letter, the RO provided the appellant with the telephone numbers to reach a veterans service representative or schedule an appointment.  In a September 2013 letter, the Board provided the appellant with another opportunity to appoint a representative.  However, the record reflects that the appellant did not respond.  Accordingly, the appellant will proceed with his appeal pro se.

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

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 has not been verified.


CONCLUSION OF LAW

The criteria for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund have not been met.  38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).

The United States Court of Appeals for Veterans Claims (Court) has held that in cases where the appellant 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) ("Since 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 a September 2009 letter, the RO provided the appellant with the required notification prior to the initial adjudication of his claim.  In the September 2009 letter, the RO notified the appellant of the evidence needed to establish entitlement to compensation under the Filipino Veterans Equity Compensation Fund, including the relevant service requirements, as well as the evidence VA would assist in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).

Moreover, as set forth in more detail below, 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.  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 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. 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 [the service department's] refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error").

As to VA's duty to assist the appellant, there is no suggestion by the appellant or the record of any outstanding evidence.  VA obtained a determination by the service department, and the appellant has submitted documents.  The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) that, in the context of a Dependency and Indemnity Compensation claim, where service department certification of an appellant's active service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department.  The Federal Circuit in Capellan held that it was a violation of VA's duty to assist not to request service department review of additional or new documents or evidence provided by an appellant concerning an appellant's active service after the initial service department certification.  See Capellan, 539 F.3d at 1380-81.  The Federal Circuit further held that "the correct interpretation of the governing statues and regulations requires that a claimant's new evidence be submitted and considered in connection with a request for 'verification of service from the service department" pursuant to 38 C.F.R. § 3.203(c)."  Id.  

The record reflects that in June 2009, the RO initially made a request to the service department with the appellant's VA Form 21-4138 (CF), Statement in Support of Claim (Filipino Veterans Equity Compensation Fund), dated February 2009.  
In August 2009, the service department responded that AGO PA Form 23 TAG-PA is required to identify a record of service for the appellant.  Therefore, the RO requested in the September 2009 letter to the appellant that he should submit a certified copy of his Affidavit for Philippine Army Personnel (Form 23 Processing Affidavit).  In response, the appellant only submitted a proof of assignment as provincial coordinator, a copy of the Philippine Daily Inquirer issue dated April 8, 2009, a copy of signs and symbols allegedly obtained from enemy camp, and a list of veterans' names including the appellant's name.

In October 2009, the appellant's daughter submitted a written statement along with a copy of the appellant's PVAO (Philippine Veterans Affairs Office) (RD) Form No. 022, Extract Individual Chronological Military Service and Military Service Record.  

The Military Service Records indicated that the appellant was assigned to the 55 Inf. Regt. 52nd Div. 5th MD and then reassigned in the Unit 6.  He procured food and cash for the Guerilla organization headquarter Hospital and had actual participation with the entire guerilla units on the mopping operation at Kituwinan Hills at Camalig, Albay with the combined forces of the 1279 Combat Engineers, U.S. Army against the last resistance of the Japanese Imperial Army in the Philippines; and was a member of the Regt'l Military Band, 55th Inf. Regt 52nd Div, 5th Military Division, Sandico Guerilla Units.  He was inducted on June 19, 1942 and separated from service on April 15, 1945.  

The RO submitted a second request for verification of the appellant's service to the service department in March 2010, but received a negative determination from the service department in May 2010.

The appellant submitted a notice of disagreement in June 2010, pointing out the fact that he was a true guerilla and gave assistance to the guerillas who fought side-by-side with the United States Army against the Japanese Imperial Army at Camalig Albay somewhere at Sitio Quituinan.  He submitted additional documents consisting of buddies statements attesting to the appellant's military service; his application for educational benefits from the PVAO, which was approved in October 2000; documents proving that the appellant was approved for and was in receipt of Old Age pension from the PVAO; and documents and photocopies proving that the appellant is a member and officer of the Veterans Federation of the Philippines.  
Based on the additional evidence, the RO submitted a request for re-verification of the appellant's service to the service department in October 2012, and again received negative responses in November 2012.

In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A (West 2002), or 38 C.F.R. § 3.159 (2013).  Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of the claim.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

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); 38 C.F.R. § 3.159(c) (2013).

Law and Regulations

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 of the U.S. Department of Veterans Affairs. 38 U.S.C.A. § 107 (West 2002).

Under the 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).  Payments for eligible persons will be either in the amount of $9,000 for non-United States citizens or $15,000 for United States citizens.

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. § 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) (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 Court has held that the 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); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997).  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has reached the same conclusion. See e.g. Soria v. Brown, 118 Fed. 3rd 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).

The record on appeal shows that in February 2009, the appellant submitted a VA Form 21-4138 (CF) as his application for one-time payment from the Filipino Veterans Equity Compensation Fund based on recognized guerrilla service during World War II.  Specifically, he reported that he had served in the Recognized Guerilla, in the Sandico unit, from June 19, 1942 to April 1945.  

As discussed above, the appellant also submitted a proof of assignment as provincial coordinator; a copy of the Philippine Daily Inquirer issue dated April 8, 2009; a copy of signs and symbols allegedly obtained from enemy camp; a list of veterans' names including the appellant's name; a copy of the appellant's PVAO (RD) Form No. 022; Extract Individual Chronological Military Service and Military Service Record; buddies statements attesting to the appellant's military service; his application for educational benefits from the PVAO, which was approved in October 2000; documents proving that the appellant was approved for and was in receipt of Old Age pension from the PVAO; and documents and photocopies proving that the appellant is a member and officer of the Veterans Federation of the Philippines.  

Upon receipt of the appellant's claim, the RO contacted the service department and requested verification of the appellant's reported military service.  In May 2010 and November 2012, the service department responded that the appellant had 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.

The appellant has not submitted any service document that establishes service as a recognized guerrilla with the U.S. Armed Forces.  None of the documents he has submitted are of the type acceptable as service documents establishing the requisite status.  They show that the appellant had possible service in the Military Guerilla, but there is no evidence of record showing that he was in the recognized guerrillas in the service of the U.S. Armed Forces.

In this case, the service department has considered the question of the appellant's military status, including a review of the documentation of record.  However, a negative response was received.  In light of the service department's certification that the appellant did not have 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 Board finds that the preponderance of the evidence is against the claim; therefore, the claim must be denied.

The Board has considered the appellant's passionate arguments for entitlement to the benefit sought.  However, as the law and not the evidence of record is dispositive in this case, the claim must be denied because of the lack of legal entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).









ORDER

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



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs