Citation Nr: 1421850	
Decision Date: 05/14/14    Archive Date: 05/21/14

DOCKET NO.  11-22 722	)	DATE
	)
	)

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


THE ISSUE

Whether the claimant has legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.


ATTORNEY FOR THE BOARD

Rebecca Feinberg, Counsel


INTRODUCTION

This appeal to the Board of Veterans' Appeals (Board/BVA) stems from a September 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2002).

A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) does not reveal any additional documents pertinent to the present appeal.

The appellant's claim was previously before the Board and remanded in May 2013 and October 2013.


FINDING OF FACT

The appellant did not have active military, naval, or air service and is not an individual or a member of a group considered to have performed active military, naval, or air service.


CONCLUSION OF LAW

The appellant does not have veteran status for purposes of his claim for payment from the FVEC Fund and does not meet the requirements of basic eligibility for these VA benefits.  38 U.S.C.A. §§ 101, 107, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 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, 3.159, 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 has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).

The United States Court of Appeals for Veterans Claims (Court) has held that, in cases where an appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated by the VCAA to inform such claimant 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 this case, review of the claims folder reveals compliance with the VCAA.  The duty to notify was accomplished by way of VCAA letters from the RO to the appellant dated in October 2009 and November 2009.  These letters satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the appellant about the information and evidence not of record that was necessary to substantiate his claim for a one-time payment from the Filipino Veterans Equity Compensation Fund; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide.  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  His appeal was thereafter initially adjudicated in September 2010.

The duty to assist the appellant has also been satisfied in this case.  The VCAA's duty to assist requirements apply to VA's efforts to obtain verification of service, as explained in Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008).  As discussed below, this duty was satisfied by the RO's requests for verification of service from the National Personnel Records Center (NPRC).  NPRC certified on multiple occasions 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.  For his part, the claimant has submitted personal statements and argument and various Philippine government documents and certifications.

Finally, the RO complied with the directives contained in the Board's May and October 2013 remands by requesting verification from the service department using all dates and names provided by the appellant.  See Stegall v. West, 11 Vet. App. 268 (1998).

The Board is therefore satisfied that the RO has provided all assistance required by the VCAA.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2013). 


Governing Law and Regulations

Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a veteran of active military, naval, or air service.  38 U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6.  Generally, a "veteran" is a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  In order to be eligible for benefits administered by the VA, the evidence must establish that the individual seeking benefits is a veteran. 

38 U.S.C.A. § 107(a) provides that service 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, will not be deemed to have been active military, naval, or air service except for specified benefits including disability compensation benefits authorized by chapter 11, title 38, United States Code.  38 U.S.C.A. § 107(a). 

Under 38 C.F.R. § 3.40, certain service with the Commonwealth Army of the Philippines, with the Philippine Scouts, and Guerilla Service, is included for VA benefits purposes.  These include service of persons enlisted under section 14, Public Law 190, 79th Congress (Act of October 6, 1945).

Under the recently enacted 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.

For eligible persons who accept a payment from the Filipino Veterans Equity Compensation 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 the enactment of this Act."

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.  Section 1002(j)(2) of the law also provides that VA will administer its provisions in a manner consistent with VA law including the definitions in 38 U.S.C.A. § 101 except to the extent otherwise provided in the statute.

The above summaries of the law and regulations as to what service constitutes active service for purposes of establishing veteran status reflect that, in order to qualify for compensation under the Filipino Veterans Equity Compensation Fund, a claimant must meet requirements that are included in the requirements under the law and regulations in effect prior to passage of this law.  Thus, in order to show entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund, a claimant must satisfy the criteria required for establishing basic eligibility for legal entitlement to VA benefits.

With regard to Philippine service, certifications by the service department will be accepted as establishing periods of recognized service as a Philippine Scout, a member of the Philippine Commonwealth Army serving with the Armed Forces of the United States, or as a guerrilla.  38 C.F.R. §§ 3.40, 3.41; Duro v. Derwinski, 2 Vet. App. 530 (1992).  Generally, a service department determination as to an individual's service shall be binding upon VA unless a reasonable basis exists for questioning it.  See Spencer v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and the VA has no authority to amend or change their decision. 

Under 38 C.F.R. § 3.203(a), 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.  A copy of an original document is acceptable if the copy is issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; and (2) the document contains needed information as to 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.

When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a), VA is required to request verification of service from the service department.  See 38 C.F.R. § 3.203(c).

Stated another way, evidence of service must be proven with either official documentation issued by a United States service department or verification of the claimed service by such a department.  See 38 C.F.R. § 3.203(a) (requiring service department documentation of service where available), and § 3.203(c) (requiring service department verification of service where documentation is not available). 

Only service department records can establish if and when a person was serving on qualifying active service.  38 C.F.R. § 3.203; Spencer v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994).  In short, under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies their service.  Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  If the United States service department declines to verify the claimed service, the applicant's only recourse lies within the relevant service department, not VA.  Soria, 118 F.3d at 749. 


Analysis-Veteran Status

In this case, the appellant applied for benefits under the Filipino Veterans Equity Compensation Fund in September 2009.  He has asserted in different written statements that he served between September 1940 and July 1947 as a Recognized Guerilla.  He has contended that NPRC is incorrect in its finding that he does not have qualifying active service.  The appellant has submitted personal statements and Philippine-based sources of evidence.

The Board has considered that, during the course of the appeal, the appellant has submitted multiple documents in support of his claim, to include his own written statements attesting to his service and Philippine service documents showing that he was involved in a battle in April 1953.  Significantly, this refers to service outside the requisite time period, and none of these documents were issued by the United States service department. 

In response to the appellant's assertions and the above-noted documents submitted by him, the RO submitted multiple VA Forms 21-3101 (Requests for Information) to the service department.  NPRC provided responses dated in January 2010 and August 2010, July 2013, and January 2014.  On all occasions, NPRC indicated that the appellant had no service as a member of the Philippine Commonwealth Army or as a Recognized Guerrilla under the USAFFE.  The appellant's correct name and personal and family information were provided to NPRC in making its determination, to include two different variations of his name and two different sets of service dates.  Simply stated, NPRC determined that the service department has no evidence that the appellant had service as a member of the Philippine Commonwealth Army, including the Recognized Guerillas, in the service of the United States Armed Forces.  Moreover, there is no allegation or evidence the appellant ever served with the New Philippine Scouts in the 1940s. 

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 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 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 an appellant's active service after the initial service department certification.  Id. 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.  In this case, the RO requested verification of the appellant's service from NPRC after he submitted additional documents relating to the nature of his service.  Thus, the RO complied with its duty to assist pursuant to Capellan.

Notably, the documents submitted by the appellant to the RO did not include a Department of Defense Form DD-214, Armed Forces of the United States Report of Transfer or Discharge, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a).  The Board has carefully considered the documentation submitted by the appellant, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203(a) as acceptable proof of service.  The documents submitted by the appellant were not issued by the service department.  As such, those documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the VA.  However, the RO was still required to request verification from the service department, i.e., the NPRC, each time new documents were submitted by the appellant.  As discussed in detail above, the RO fulfilled that duty.  NPRC considered the additional information contained in that documentation, but still made repeated findings of a lack of qualifying service for the appellant, which are binding and conclusive upon VA.  Spencer, 13 Vet. App. at 380; Venturella, 11 Vet. App. at 341; Cahall, 7 Vet. App. at 237; Duro, 2 Vet. App. at 532.  Therefore, the Board finds that the appellant did not have the requisite service to qualify for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.

For the foregoing reasons, the Board concludes that the appellant had no qualifying service.  Therefore, the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund have not been met, and the claim must be denied.  Because VA benefits are not authorized as a matter of law in this case, the benefit of the doubt is not applicable.  See Sabonis v. Principi, 6 Vet. App. 426, 429-30 (1994) (where law and not evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under the law).

As noted in Soria, and reiterated in Palor, the appellant's "only recourse lies within the relevant service department, not the VA."  Soria, 118 F.3d at 749.  See also Palor, 21 Vet. App. at 333.  The proper course for the appellant, if he believes there is a reason to dispute the report of the service department or the content of military records, is to pursue such disagreement with the service department.  See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).  Any recognition a claimant may have of service by the Philippine Government, although sufficient for entitlement to benefits from that government, is not sufficient for benefits administered by VA.


ORDER

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


____________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs