Citation Nr: 1339408 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 10-43 195 ) 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 H. Hoeft, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 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). The appellant requested a Videoconference hearing in October 2010. See VA Form 9. In June 2011, a Statement in Support of Claim (signed by the appellant) reflects that the appellant wished to withdraw his request for a Videoconference hearing and instead opted for an informal conference hearing. See Informal Conference Hearing Summary, June 2011. Although the appellant expressly withdrew his request for a Board hearing, the RO nevertheless scheduled a Videoconference hearing in February 2013; the appellant did not appear. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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 entitle him to payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 107, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.9, 3.40, 3.203 (2013); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) Compliance 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) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 the notification letter for the currently appealed September 2009 decision, which denied the appellant's claim of entitlement to a one-time FVEC payment, 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 a January 2010 letter, VA provided notice to the appellant of how to establish entitlement to FVEC compensation and what evidence VA and the appellant were responsible for obtaining. The appellant's claim subsequently was readjudicated in August 2012 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). Additionally, subsequent readjudication of the claim cured any timing defect. 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) (West 2002). Such service is a fundamental prerequisite to qualify for the compensation which the appellant seeks from FVEC. 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 FVEC payment 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. See 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 FVEC payment. Upon receipt of these documents, the RO properly submitted them to the NPRC in St. Louis, Missouri on numerous 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 August 2009, September 2010, June 2012, July 2013, 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. Given the foregoing, the Board will proceed to adjudicate the appellant's claim. Analysis The appellant essentially contends that his Philippine Army service during World War II qualifies as service in the Armed Forces of the United States, thus entitling him to the one-time FVEC payment. He states that he served under an alias, C.S., due to danger to his family if he were to be found to be serving in the military against the occupying Japanese forces. He also reports serving with the Hunter's ROTC Guerillas from approximately July 1941 to December 1945. 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." 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. Section 1002(d) of the Act 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 38 C.F.R. § 3.203 (2013), 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 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). In February 2009, the appellant filed an application for one-time FVEC payment. In May 2009, VA contacted the NPRC. The NPRC responded in August 2009 by informing VA that the "Subject has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces." His claim was subsequently denied in September 2009. In December 2009, the appellant submitted information in support of his claim. This included a Certification letter from the Department of National Defense, Philippine Veterans Affairs Office, indicating that the appellant was an active pensioner under RA-6948. In February 2010, the appellant submitted a membership/identification card from the "General Headquarters, Univets - USAFFE-GUERILLA Affiliate-VFP-Chartered Republic Act-2640"; a February 1979 letter from the Philippines Veterans Affairs Office, certifying that the appellant, "C.S." (i.e., the appellant's alleged alias), was a veteran of World War II/Philippine Revolution "who served with Hq Co 44th Regt. Hunter's ROTC, with the grade/rank of Pvt," with a recognition dated of May 1942, and on the basis of having his name in the Approved Revised Reconstructed Guerilla Roster of 1948; an affidavit signed by A.S.D. (Commanding Officer of the Hunter's ROTC) and I.C. (Executive Officer of the Hunter's ROTC), who attested to knowing the appellant (D.M., alias C.S.) as a "bonafide member of the Hunter's ROTC Guerillas who was inducted in the active service on May 17, 1943..." and that during the resistance movement, the appellant was using the name of C.S. as his alias to hide his real identity; and a June 1977 Certification letter from the Department of National Defense, Republic of Philippines, certifying that (according to their records) the appellant joined the guerilla and that his alias, C.S., was on the Approved Revised Reconstruction Guerilla Roster. In February 2010, VA contacted the NPRC and requested a copy of the appellant's Affidavit for Philippine Army Personnel (PA AGO, Form 23). In July 2010, VA contacted the NPRC and requested re-verification of service based on the additional name/alias of "C.S," noting that C.S. was listed on the guerilla register but that no Form 23 was available. In September 2010, the NPRC responded that no change in verification was warranted based upon the additional information submitted. In May 2011, VA received the appellant's PA AGO Form 23 and again contacted the NPRC (in May 2012) to re-verify service based on a variation in service number as well as the Form 23. The NPRC responded in June 2012 and noted that, although the appellant's alias (which was confirmed on the Form 23) was listed on page 9, file #71 of the Reconstructed Recognized Guerilla Roster (RRGR) maintained by the RO in Manila, no change was warranted for prior negative determination. In October 2012, November 2012, and May 2013, July 2013 VA contacted the NPRC requesting to re-verify the appellant's service based on the date separated from active duty and review of the Form 23. In July 2013, the NPRC responded that "no change was warranted in prior negative certification," and that although the appellant's Form 23 indicated that D.M. and C.S. were one in the same person, page 2 of the Form 23 "did not contain information that would be compatible with the archives." In August 2013, the NPRC again responded that while the appellant's alias was listed on the RRGR, they were still unable to verify his service and that the Form 23 did not provide the alleged service on page 2 of that document. 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 August 2009, September 2010, June 2012, July 2013, 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 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, as well as documents attesting to his alleged alias, C.S., and his involvement with the Hunter's ROTC Guerillas. 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 FVEC payment, 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 also sent to the NPRC on multiple occasions. None of the additional information that was submitted to the NPRC for re-verification, to include re-verification based on his alleged alias (which is listed on the RRGR), 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. In this case, the NPRC is equivalent to a service department as to service verification. Given NPRC'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 FVEC payment. Therefore, the appellant's claim must be denied because the preponderance of the evidence is against the claim. ORDER Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs