Citation Nr: 1637076 Decision Date: 09/21/16 Archive Date: 09/27/16 DOCKET NO. 13-00 306 ) 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 Veteran's Equity Compensation (FVEC) fund. ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The appellant asserts that her late husband was a deserving Philippine guerilla veteran of World War II. He died in April 2010. The appellant continued this claim on a substituted basis. This matter comes before the Board on appeal of an administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, in January 2011, which denied entitlement to a one-time payment from the FVEC based on no evidence of qualifying military service. The Board notes that the American Recovery and Reinvestment Act which provided for creation of the FVEC fund does not permit recovery from the fund by surviving spouses. However, the law does permit a surviving spouse to receive benefits due to a qualified person who filed a claim under the Act after February 17, 2009 but dies prior to the payment of the benefits, which is the case here. This case was previously before the Board in March 2015, when it was remanded for further development. The remand was pursuant to the decision by the United States Court of Appeals for Veterans Claims (Court) in Tagupa v. McDonald, 27 Vet. App. 95 (2014) which found that the relationship between the National Archives and Records Administration (NARA) and the Department of the Army (Army) regarding verification of service records, to include the Memorandum of Agreement (MOA) was not completely clear. Pending cases (similar to Tagupa) at the Court involving a lack of verified service of individuals asserting entitlement to benefits, particularly from the FVEC fund, were vacated by the Court. In the March 2015, the Board found this to be an appropriate reason to remand this appeal for further development, to specifically include submitting the request for verification of service to the Army. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Army has determined that it was unable to verify that the appellant's deceased husband had service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces. CONCLUSION OF LAW The criteria for obtaining a one-time payment from the FVEC have not been met. 38 U.S.C.A. §§ 501(a); 5103, 5103A; American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009); 38 C.F.R. §§ 3.40, 3.41, 3.159, 3.203 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA outlines procedural assistance VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. There are some claims, however, to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). In this case, the Board notes that the pertinent law is determinative of the appellant's claim. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). This case is based on the question of whether the appellant's deceased husband qualified for FVEC benefits as a recognized guerrilla. Therefore, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is inapplicable. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). As such, no further action is required pursuant to the VCAA. Nevertheless, the Board notes that the appellant has been afforded all the assistance reasonably possible. Multiple attempts have been made through the NPRC and the Army to determine if the appellant's deceased husband had recognized service. As such, the Board finds that any duty to assist the appellant has been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In 2009, under the American Recovery and Reinvestment Act, a one-time benefit was provided for certain Philippine veterans to be paid from the FVEC Fund. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009). Payments for eligible persons would be in the amount of either $15,000 for United States citizens or $9,000 for non-United States citizens. For eligible persons who accept a payment from the FVEC Fund, such payment shall constitute a complete release of any claim against the United States by reason of such service. However, nothing in the Act prohibits 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 that Act. Section 1002 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East (USAFFE) during World War II. 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. The appellant's late husband filed a claim in March 2009 asserting entitlement to a one-time payment from the FVEC as a qualifying guerrilla. In accordance with established VA procedure, an inquiry was submitted to the National Personnel Records Center (NPRC) with the information he provided of his name, date of birth, alleged dates of service, alleged unit of assignment, and alleged area of service, for verification against the official list of recognized guerrillas and members of the Philippine Commonwealth Army serving under the direction of the U.S. armed forces during World War II. A certificate submitted in March 2009 asserts that he served in Co. Sqdn 67 Bell's Grla between May 1942 and July 1945. Other documents list his unit as 7th Repl. Co. 2nd Repl. Bn (PA) APO 70. A response provided by the NPRC in November 2010 stated that the appellant's spouse 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 claim was denied in January 2011. In June 2011, the appellant appealed, noting that her husband had died in April 2010. In June 2011, the appellant was advised that her Notice of Disagreement with the denial of FVEC benefits could not be accepted, because only individuals defined by the law as veterans or guerrillas were entitled to benefits; spouses and surviving children were not eligible to seek benefits. The appellant then filed a claim of substitution, seeking to continue the appeal of the claim first filed by her husband. A second submission to the NPRC with the unit listed as "7th Repl Co 2nd Repl Bn (PA) APO 70; 61st Div; Co Sqdn 67th Bell's Grla" again elicited the response that he had no service in the Philippine Commonwealth Army or recognized guerrillas and the claim was again denied in November 2011. The appellant filed a timely Notice of Disagreement with that denial and perfected her appeal to the Board. As discussed above, while the matter was pending at the Board, the Court issued a decision in Tagupa v. McDonald which directly impacted the basis for the denial of this claim. Specifically, the case discussed the requirement under 38 C.F.R. § 3.203(c) that VA seek verification of an individual's military service from a "service department", in light of the fact that VA customarily submits such requests to NARA or its agency, the NPRC. The Court found the MOA between NARA and the Army ambiguous as to whether NARA had the authority to make determinations regarding verification of service or was merely a reference librarian for the Army. Therefore, the Court held that VA was required to seek verification of service from the Army rather than NARA or the NPRC. This case was likewise remanded with instructions to seek verification from the Army. On remand, a request was sent to the Army in March 2015 to verify the service of the appellant's husband as required under Tagupa and noted the enclosure of the bulk of the current claims file and all of the information discussed above. The Army was asked to indicate whether any of the information submitted warranted a change in the "previous negative certification by NPRC" and to confirm the documents which were researched. In June 2016, the Army responded and noted the existence of the file created during the previous search, along with the information listing the assigned unit as "Bell's Guerrilla's, Squadron 67, 1st Regiment PMD, 2nd Provisional Regiment ECLGA" and "Bell's Guerrilla's PMD." The Army stated that a troop roster could not be identified for Bell's Guerrilla's or for Squadron 67. Existing rosters for the Bataan Military District (BMD), East Central Luzon Guerrilla Area (ECLGA), as well as for the Pangasinan-Tarlac Military District and the Pampange Military District (PMD), which are also part of the ECLGA were searched with no success. Because the information provided was not specific enough to identify a unit, the entire listing for the ECLGA and BMD was searched. Based on the search conducted, the Army stated that the name of the appellant's husband does not appear on any of the rosters of guerrillas maintained by the Army. Therefore, the Army was "not able to accept the Certification from General Headquarters Armed Forces of the Philippines to verify service." The Board notes that neither the appellant nor her husband at any point submitted a Department of Defense Form 214, Armed Forces of the United States Report of Transfer of Discharge (DD-214), or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1). Rather, the documents submitted include Philippine Army service certification documents, evidence of receipt of benefits as a Philippine veteran under the that country's laws, and a photograph of a group of men with no official information as to the identities of the men in the photo or the date or location of the photograph or the purpose for which it was taken. Unfortunately, these do not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department, but rather documents from the Philippine government. As such, none of these documents may be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including the one-time payment from the FVEC Fund. The appellant and her son have submitted statements questioning the Board's reliance on the records at the NPRC because of the well-known 1973 fire at the NPRC which destroyed more than 10 million official military record. However, as the Court recognized in Tagupa, the NPRC is the agency officially designated by NARA as the repository of military records. Moreover, under 38 C.F.R. § 3.203 (c), and in accordance with the Court's holding in Tagupa, VA sought verification of service for the appellant's husband through the appropriate service department, the Army. The Board notes that the record contains a new Memorandum of Agreement (effective January 5, 2016) between the Army and the National Archives and Records Administration defining the responsiblies of each group. The language of 38 C.F.R. § 3.203(c) is clear: "When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of paragraph (a) of this section (and paragraph (b) of this section in pension claims), the Department of Veterans Affairs shall request verification of service from the service department." The use of the word "shall" requires that VA request service verification from the service department when either the claimant submits no evidence of service or VA determines that the evidence submitted does not satisfy the requirements of subsection (a). See Tagupa, 27 Vet. App. at 100. Therefore, VA is prohibited from finding that a person served in the U.S. Armed Forces based on anything other than a document issued by a service department or verification by a service department. Id.; see also Duro v. Derwinski, 2 Vet App. 530, 532 (1992) (stating that service department verification is binding on VA such that VA has no authority to change or amend the finding). Here, the service department was contacted and provided multiple documents and information in attempting to verify the service. However, the June 2016 response from the Department of the Army based on the reseach conducted by the National Personnel Records Center was a negative service determination. In this situation, the proper course for any claimant who 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. Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). In sum, recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits administered by VA, which is bound to follow the certifications by the service departments with jurisdiction over United States military records. Those records do not reflect that the Appellant's deceased husband had qualifying service. On that basis, the Appellant does not meet the basic eligibility criteria for establishing entitlement to the one-time payment from the FVEC Fund. ORDER Basic eligibility for a one-time payment from the FVEC fund is denied. ____________________________________________ P. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs