Citation Nr: 1339617 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 10-23 520 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Whether the appellant is a Veteran for the purpose of establishing entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant contends that he served in the Philippine Commonwealth Army, to include recognized guerrilla service, in the service of the United States Armed Forces. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decisional letter by the Manila Regional Office (RO) that denied the appellant's claim seeking compensation from the Filipino Veterans Equity Fund. Because veteran status of the person seeking benefits is a threshold requirement for establishing entitlement to such benefit, that is the matter before the Board. In September 2011, a videoconference hearing before the Board was scheduled at the appellant's request; however, he failed to appear for such hearing (without giving cause or expressing a desire to have the hearing rescheduled). Hence, the Board finds the hearing request to be withdrawn. In November 2011, August 2012, and October 2012 the Board remanded the case for additional 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 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 Armed Forces of the United States. CONCLUSION OF LAW The appellant is not a veteran, and he is not eligible to receive a one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 107 (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Palor v. Nicholson, 21 Vet. App. 325 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, in claims where it is first necessary to establish veteran status, proper VCAA notice must be tailored to also inform the claimant of the information or evidence necessary to prove the element of veteran status, what information the appellant is responsible for providing, and what information VA will seek to obtain concerning that element. A close review of the claims file found that the appellant was not advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. However, the Board finds that he is not prejudiced by such notice defect. In Shinseki v. Sanders, 556 U.S. 396 (2009), the United States Supreme Court held, in essence, that - except for cases in which VA has failed to inform the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, and determinations on the issue of harmless error should be made on a case-by-case basis. The appellant has not alleged that he is prejudiced because he did not receive timely notice of what is necessary to substantiate his claim. VA reminded him what was necessary in November 2012, and the case was subsequently readjudicated in February 2013, after he had been given the opportunity to submit additional evidence, curing any notice/timing defect. Prickett v. Nicholson, 20 Vet. App. 370 (2006); see also Palor, 21 Vet. App. at 332-33 ("given the binding nature of the U.S. service department's certification . . . a remand for further development could not possibly change the outcome of the decision"). The RO sought certification of the appellant's military service and advised him of what documents he could submit to assist in the matter. There is no indication that information submitted by VA to the service department for the purposes of certifying his service was erroneous or incomplete. The appellant has not identified or submitted any further evidence suggesting that re-certification of his service/ nonservice is necessary. VA's duty to assist is met. Factual Background The Board notes that it has reviewed all of the evidence in the appellant's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In May 1992, in conjunction with a claim for entitlement to disability benefits, the National Personnel Records Center (NPRC) certified 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. In March 2009, the appellant submitted a VA Form 21-4138 to apply for a one-time payment from the Filipino Veterans Equity Compensation Fund. He contended that he had recognized guerilla service, and listed his full name, his date and place of birth, his parents' names, the name of his spouse, and the date of their marriage. The appellant then submitted the following documents in connection with his claim: * A photocopy of a certification from the Philippine Veterans Affairs Office (PVAO) dated November 19, 2009, stating that the appellant was an active pensioner and was approved for old age pension and listing his unit, grade/rank, induction date, and separation date. * A photocopy of questions asked and answered during a May 1992 interview, which listed the appellant's name, address, date inducted, and year and month separated. * A photocopy of questions asked and answered of a fellow service member (M. M.) during a May 1992 interview, which attested to the appellant's service with the Masbate Guerrilla forces. * Photocopies of affidavits by W. Z. B., L. B. B., O. R. C., A. E. J., and P. F. C., which attested to the appellant's guerilla service. * A photocopy of an affidavit from the appellant, wherein he described the nature of his guerilla service. * A photocopy of an application for pension benefits, which listed the appellant's date and place of birth, present address, and last unit assignment. * A photocopy of a January 2002 PVAO recertification of the appellant's active pensioner status. * A photocopy of an August 1993 special order from the Veterans Foundation of the Philippines (VFP) appointing the appellant as Acting District Commander of the 1st Masbate District, VFP. * A photocopy of a pension benefits check issued by the PVAO. * A photocopy of the appellant's Application for Settlement of Claims of Filipino Veterans under Republic Act No. 1889. * A photocopy of a Marking's Fil-American Troops, Santos Regiment, identification card. * A March 2010 medical abstract addressing the appellant's present medical conditions. * A November 2009 statement from the appellant indicating that he served in the Recognized Guerillas of the Commonwealth Army of the Philippines during World War II. In November 2011, this case was remanded by the Board for recertification of the appellant's alleged service based on all information then of record, including all units identified, all dates of service, and the name of his commanding officer. In December 2011, the RO received two letters from the appellant's son-in-law, B. C. G., attesting to the appellant's guerilla service. That same month, the RO sought re-certification of the appellant's service from the NPRC. In January 2012, the NPRC re-certified 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. In January and February 2012, the RO received additional letters from B. C. G., again attesting to the appellant's guerilla service. This case was remanded again by the Board in August 2012 for recertification of the appellant's alleged service because the December 2011 NPRC request did not include all identified units and commanding officers and because the appellant's father's name was misspelled on the request. B. C. G. submitted another statement, received in August 2012, along with a duplicate copy of the appellant's Fil-American Troops identification card. In October 2012, this case was again remanded by the Board because the development sought was not completed. The following month, the RO sought re-certification of the appellant's service from the NPRC based on all units, dates of service, and commanding officers specified in the Board remands, as well as correcting the spelling of the father's last name. In November 2012, the Board received a letter from B. C. G., again attesting to the appellant's guerilla service. In January and March 2013, the NPRC noted that no change was warranted in the prior negative service certifications. Legal Criteria and Analysis Under the American Recovery and Reinvestment Act, a 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 Feb. 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. 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 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. For purposes of establishing entitlement to VA 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 under 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). When the claimant does not submit evidence of service or the evidence does not meet the requirements of this section, the VA shall request verification of service from a service department. 38 C.F.R. § 3.203(c). The appellant has not submitted any document that meets the first requirement of 38 C.F.R. § 3.203(a). He has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the U.S. Armed Forces. Therefore, VA sought service department verification of whether the appellant served in the U.S. Armed Forces in the Philippines. In May 1992, January 2012, January 2013, and March 2013, based on information contained in the appellant's claims form and in the documents he subsequently submitted, the service department (via the NPRC) certified it had no record of the appellant serving as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The Board notes that while the appellant has provided ample evidence to show that he is a veteran of the Philippine Army, he has not provided sufficient evidence to establish that such service was in the service of the United States Armed Forces. The documents certifying that he is a veteran of World War II were provided by the Philippine Veterans Affairs Office, not the U.S. service department, and are therefore inadequate to establish veteran status. See 38 C.F.R. § 3.203(a). Conversely, certifications from the service department (via the NPRC) are binding on VA, and VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet. App. 530 (1992). If a change of service department certification is what the appellant seeks, his remedy lies with the service department and not with VA. The appellant has provided no further evidence or information (since the March 2013 certification) that would warrant another request for re-certification of his service/nonservice by the service department, and VA must abide by the service department's certification. See Capellan v. Peake, 539 F.3d 1373 (Fed Cir. 2008); Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Accordingly, the Board finds the appellant did not have the requisite service and is not a veteran so as to establish eligibility for compensation from the Filipino Veterans Equity Compensation Fund. Since the law is dispositive in this matter, the claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal to establish veteran status for the appellant and his entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs