Citation Nr: 1339840	
Decision Date: 12/03/13    Archive Date: 12/18/13

DOCKET NO.  11-15 980	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

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


ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 and June 2010 administrative decisions issued by 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.

In a March 2011 written statement, the appellant stated that he "want[s] an agent or attorney to represent me [i]n my appeal."  He was sent a letter later that month with an enclosed VA Form 21-22a, "Appointment of Individual as Claimant's Representative," with a list of recognized service organizations.  He was instructed to complete the form when he has chosen a representative, and was told that he could also make an appointment to see someone at the Manila RO if he required assistance.  

In May 2011, VA received from the appellant a copy of the VA Form 21-22a that had been partially filled out.  On this form, the appellant did not identify an individual whom he was designating to be his accredited representative.  Later that month, VA sent the appellant a letter notifying him that his form was incomplete and instructing him how to designate an individual or organization to represent him in his claim.  He was also given contact information if he wished to speak with a appellant's representative in person.  The appellant did not fill out a new power of attorney form, and the record does not reflect that he has otherwise indicated that he wishes to be represented.  Therefore, the Board concludes that the appellant does not wish to be represented in this matter and will proceed with the adjudication of his claim.  

Please note 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 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.



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, 5107 (West 2002); 38 C.F.R. § 3.203 (2013); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (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).

As for the appellant's claim of basic eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund, 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 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) (as veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of notice concerning proof of veteran status is necessary in most, if not all, cases).

The Board finds that the notification requirements of VCAA have been satisfied in this case.  Most recently, in a July 2013 letter, VA provided notice of how to establish entitlement to compensation from the Filipino Veterans Equity Compensation Fund, which evidence VA is responsible for obtaining, and what evidence the appellant was responsible for obtaining.  In the May 2009 and June 2010 administrative decision notification letters, the RO explained that verification of military service was the responsibility of the National Personnel Records Center (NPRC) 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).  The claim was subsequently readjudicated following the issuance of the July 2013 notice letter in a September 2013 supplemental statement of the case.  Thus, any deficiencies in the timeliness of the notice letters would not be prejudicial.

In any event, the issue presented is solely one of statutory interpretation and the claim is barred as a matter of law.  See Smith v. Gober, 14 Vet. App. 227, 231-232 (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) (VCAA notice 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 facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to the type of service that qualifies an individual for eligibility for compensation under the Filipino Veterans Equity Compensation Fund.  Accordingly, VA's duties to notify and assist are generally inapplicable.

The Board observes that in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the Federal Circuit held (in the context of a Dependency and Indemnity Compensation claim), that where service department certification of a claimant'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 also 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 a veteran'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 statutes 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.

In this case, the RO has obtained three service department certifications of the claimant's alleged active service (in May 2008, February 2011, and August 2013).  No new documentation or information has been submitted by the appellant (or any other source) since the most recent service department certification in August 2013.

The evidence of record provides sufficient information to adequately evaluate the claim.  Therefore, no further assistance to the appellant with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the appellant.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Filipino Veterans Equity Compensation Fund

The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War.  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).

On February 17, 2009, the President 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 included 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 for non-United States citizens, or $15,000 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 or 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).

With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for ninety 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 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).

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.").

Turning to the case at hand, the RO has on three separate occasions requested searches for the appellant's military records from the NPRC.  In May 2008, the NPRC responded that it could not verify the appellant's guerrilla service with the "K" Company, 3rd Battalion, 14th Infantry, from May 28, 1945 to February 16, 1946. 

Subsequently, in February 2011, the NPRC looked at guerilla service in "B" Company, 1st Battalion, 22nd Infantry, as well as "F" Company, "Repl & Cas" Battalion, for the dates from May 28, 1945, to February 16, 1946, and from June 1, 1945, to February 14, 1947.  The NPRC again determined that it could not verify any qualifying service. 

Following the June 2013 Board remand, in July 2013, the RO requested that the NPRC determine whether the appellant had guerilla service in "K" Company, 3rd Battalion, 14th Infantry, with "B" Company, 1st Battalion, 22nd Infantry, or with "F" Company, "Repl & Cas" Battalion.  The following dates were listed as possible service dates for each of these units: from June 1945 to November 1945; from November 15, 1945, to February 15, 1946; from May 26, 1945, to February 21, 1946; from November 15, 1945, to February 21, 1946; from November 15, 1945, to February 21, 1947; from May 28, 1945, to February 21, 1947; from May 28, 1945, to February 16, 1946; and from June 1, 1945, to February 14, 1947.  In August 2013, the NPRC again determined that 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."  

In short, as set forth above, the NPRC has three times certified 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.  As noted above, service department findings are binding on VA for purposes of establishing service in the United States Armed Forces.  Duro, 2 Vet. App. at 532.  

Based upon the NPRC's finding and the law applicable to this case, the appellant does not meet the basic eligibility requirements for a one-time payment from the Filipino Veterans Equity Compensation fund.  As the law, and not the evidence, is dispositive, the appeal is denied due to the absence of legal merit.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Consequently, the appellant's claim must be denied as a matter of law.



ORDER

Entitlement to 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