Citation Nr: 1338357	
Decision Date: 11/21/13    Archive Date: 12/06/13

DOCKET NO.  11-02 692A	)	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

B. R. Mullins, Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC).  This issue was previously remanded by the Board in June 2013 for further evidentiary development.  

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 appellant has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.  


CONCLUSION OF LAW

The appellant did not have the requisite service to render him eligible for VA benefits.  38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. § 3.1, 3.9, 3.40, 3.203 (2013).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

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 a claimant of the evidence necessary to substantiate a claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.  

The United States Court of Appeals for Veterans Claims (Court) has held that, in cases where the appellant alleges recognized guerilla service or service in the Philippine Army during World War II, VA is obligated to inform him or her of the information or evidence necessary to prove the element of Veteran status.  Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) (finding that, as Veteran status frequently is dispositive in claims filed by Philippine claimants, some tailoring of notice concerning proof of Veteran status is necessary in most, if not all, claims).  

In the notification letter for the currently appealed May 2010 administrative decision, which denied the appellant's claim of entitlement to a one-time payment from the FVEC, the RO explained that verification of military service was the responsibility of the National Personnel Records Center (NPRC) in St. Louis, Missouri, and its findings were binding on VA.  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 May 2011 and July 2013 letters, VA provided notice to the appellant of how to establish entitlement to compensation from the FVEC Fund and what evidence VA and the appellant were responsible for obtaining.  The appellant's claim subsequently was readjudicated in September 2011 and September 2013 supplemental statements of the case.  The Board acknowledges that, although the appellant was not provided with pre-adjudication VCAA notice concerning his claim, the lack of notice was not prejudicial in this case.  The Court in Palor stated, "[I]n 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 NPRC's refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error.  See 21 Vet. App. at 332 (citing Soria, 118 F.3d at 749).  In other words, a VCAA notice error like the one which occurred in this case is not prejudicial where the appellant is not entitled to the benefit as a matter of law.  See also Valiao v. Principi, 17 Vet. App. 229 (2003).  

As will be explained below, the appellant does not have qualifying active service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the Armed Forces in the service of the United States and he is not considered a "veteran" for VA compensation purposes.  See generally 38 U.S.C.A. § 101(2).  Such service is a fundamental prerequisite to qualify for the compensation which the appellant seeks from the FVEC Fund.  See generally American Recovery and Investment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).  Because the appellant lacks qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States, he is not entitled to a one-time payment from the FVEC Fund as a matter of law.  See Smith v. Gober, 14 App. 227, 232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. Denied, 573 U.S. 821 (2002).  See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice is not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim for a benefit to which the claimant is not entitled as a matter of law).  

The appellant also has not contended, and the evidence does not show, that there are additional outstanding service records demonstrating that he, in fact, had qualifying active service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States which VA has not obtained or submitted to the relevant service department for verification.  Capellan v. Peake, 539 F.3d 1373 (2008) (finding that VA erred in denying the appellant's claim with no review of subsequent evidence by the service department).  The Board notes in this regard that the appellant has submitted documents on several occasions to VA in support of his claim of entitlement to a one-time payment from the FVEC Fund.  Upon receipt of these documents, the RO properly submitted them to the NPRC in St. Louis, Missouri on three separate occasions for appropriate service department verification in accordance with the Court's decision in Capellan.  Id.  No additional evidence has been submitted by the appellant since the most recent service department certification in August 2013.  In response, NPRC verified in May 2010, June 2011 and August 2013 that the appellant had no qualifying active service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States.  

The appellant has not asserted that the lack of pre-adjudication VCAA notice was prejudicial to him.  Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The Board observes that notice as to what is required to substantiate a claim of entitlement to a one-time payment from the FVEC Fund, including VCAA notice, was provided to the appellant during the pendency of his claim.  His claim was subsequently readjudicated in April 2013.  Accordingly, the Board concludes that, because no reasonable possibility exists that providing the appellant with further assistance will aid in substantiating his claim, the lack of pre-adjudication VCAA notice was not prejudicial.  See also Sanders v. Nicholson, 487 F.3d 881 (2007), rev'd sub nom. Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  A remand to provide the appellant with additional notice would serve no useful purpose.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided).  

In this case, it is the law, and not the facts, that are dispositive.  Thus, the Board finds that the general duties to notify and assist claimants under the VCAA are not applicable.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  The Court has held that enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations.  See Smith, 14 Vet. App. 227, 231-32 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002, cert. Denied, 537 U.S. 821 (2002); see also 38 C.F.R. §§ 3.159(b)(3)(ii), (d)(3).  Given the foregoing, the Board will proceed to adjudicate the appellant's claim.  

Analysis

The appellant contends that he is entitled to VA benefits - specifically, a one-time payment from the Filipino Veterans Equity Compensation Fund, due to his service during World War II.  

Under the American Recovery and Reinvestment Act, a new one-time benefit is provided for certain Philippine Veterans to be paid from the "Filipino Veteran's Equity Compensation Fund."  See 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.  

For eligible persons who accept a payment from the FEVC Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service."  However, nothing in this act "prohibit[s] a person from receiving any benefit (including health care, survivor or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of enactment of this Act."  

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 - (1) 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 as guerilla 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.  

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.  See Duro, 2 Vet. App. at 532; see also Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997).  The Federal Circuit has reached the same conclusion.  See Soria, 118 F.3d at 749 (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.").  

Under the implementing regulation for establishing entitlement to a one-time payment from the FVEC Fund, 38 C.F.R. § 3.203, VA may accept evidence of service submitted by a claimant such as a DD Form 21, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the relevant service department if the evidence meets the following criteria: (1) the evidence is a document issued by the service department; (2) the document contains needed information such as length, time and character of service, and (3) in the opinion of 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, 38 C.F.R. § 3.203 provides that a document may be accepted without verification if, in addition to meeting the requirements outlined in § 3.203(a), the document also shows (1) service of 4 months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on the records from the service department such as hospitalization for 90 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 does not meet the requirements outlined in § 3.203(a) or (b), VA shall request verification of service from the relevant service department.  38 C.F.R. § 3.203(c).  

In March 2009, the appellant filed an application for one-time payment under the FVEC Fund.  In support of his claim, the appellant submitted a number of different documents.  One such document is an affidavit signed by the appellant's commanding officer in August 1945.  This reflects that the appellant was inducted into a guerilla group in June 1943.  Upon receipt of this evidence, the service department confirmed in May 2010 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.  

The appellant subsequently submitted additional evidence, including a document from the Philippine Veterans Affairs Office, indicating that he served with the Hq Co., 1st Bn., FAIT and that the appellant's name was on the Approved Revised Reconstructed Guerilla Roster of 1948.  The appellant later submitted an affidavit signed by him in January 1946, reflecting that he worked with a number of different units during his service, performing operations such as combat, scouting and espionage.  He also submitted a document from the General Headquarters of the Armed Forces of the Philippines, dated February 2011.  This document describes the appellant's military status as recognized guerrilla with "B" co, 1st Bn 12th Inf Straughn's FAIT.  This evidence was sent to the service department as well, but in June 2011, it was determined again 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.  

Finally, the appellant subsequently submitted evidence reflecting service in Hq Company, 1st Battalion, Filipino-American Irregular Troops (FAIT) from June 1, 1943, June 28, 1945 and service in "B" Company 1st Battalion, 12th Infantry, from June 1, 1943, to April 2, 1945, and thereafter attachment to the 814th M.P., U.S. Army, until October 2, 1945.  This evidence was forwarded to the service department for verification of recognized service, but it was determined in August 2013 that no change was warranted to the prior negative certifications.  

The Board finds that the above evidence is against granting the appellant's claim of entitlement to a one-time payment from the FVEC Fund.  The NPRC certified in May 2010, June 2011 and August 2013 that the appellant had no qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces such that he is entitled to a one-time payment from the FVEC Fund.  Thus, the appellant is not considered a "Veteran" for VA compensation purposes.  See generally 38 U.S.C. § 101(2).  

The appellant also 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).  Instead, he has submitted numerous documents prepared by the Philippine government.  These documents do not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service for purposes of determining entitlement to eligibility for VA benefits, to include one-time payment from the FVEC Fund, as none of them are official documents of the appropriate United States service department but rather documents from the Philippine government.  See 38 C.F.R. § 3.203.  All of the information submitted by the appellant in support of his claim was sent to the NPRC.  None of the additional information which was submitted to the NPRC for re-verification has changed the initial service department verification that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.  This verification is binding on VA which has no authority to change or amend the finding.  Duro, 2 Vet. App. at 532.  

The proper course for the appellant, if he believes that there is a reason to dispute the report of the service department or content of military records, is to pursue such disagreement with the relevant service department (in this case, the U.S. Army).  See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994); see also 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 VA").  The Board observes in this regard that the recognition of service by the Philippine government is not sufficient for benefits administered by VA because VA is bound by the service department certifications.  

Given the service department's repeated verification that the appellant had no qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces, the Board finds that he is not entitled to a one-time payment from the Filipino Veteran's Equity Compensation Fund.  Therefore, the appellant's claim must be denied as a matter of law.  See Sabonis, 6 Vet. App. at 426.  


ORDER

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




____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs