Citation Nr: 1640161 Decision Date: 10/06/16 Archive Date: 10/19/16 DOCKET NO. 14-27 812 ) 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 (FVEC). ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The decedent died in January 2010. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a January 2012 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In August 2014, the appellant failed to appear for a requested videoconference before the Board. She has not provided good cause for her failure to appear, nor has she requested that the hearing be rescheduled. Therefore, her hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (d) (2015). The Board remanded the claim in August 2015 for additional development. The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). As noted in the August 2015 remand, the Board again observes that a procedural question arose as to whether the appellant filed a timely notice of disagreement (NOD) with the January 2012 decision currently on appeal. In this regard, in April 2013, the appellant was notified that an NOD received in April 2013 was untimely, and the appellant subsequently filed an NOD with the April 2013 determination as to the timeliness of the appeal. However, the Board observes that in December 2012, within one year of the January 2012 decision, the appellant filed a timely NOD, stating her intent to appeal and referencing the January 2012 decision. Thereafter, the RO issued a statement of the case in June 2014, and the appellant perfected her appeal the same month. Thus, the issue as to the timeliness of the April 2013 NOD (filed in response to the January 2012 decision) is moot and will not be addressed further. The Board additionally noted in its August 2015 remand that while a previous March 2011 decision issued pursuant to the appellant's January 2011 claim also denied the issue on appeal, and the appellant did not file a timely NOD with that decision, she nevertheless submitted new and material evidence within one year of the decision. 38 C.F.R. § 3.156. As such, the March 2011 decision remained pending, and new and material evidence was not necessary to reopen the claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund decided by the January 2012 decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Appellant's spouse had no certified 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 requirements for eligibility to a one-time payment from the FVEC Fund have not been met. 38 U.S.C.A. §§ 101, 501(a), 5107 (West 2014); 38 C.F.R. § 3.203 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist 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); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). As for the appellant's claim of basic eligibility for a one-time payment from the FVEC 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). In the January 2012 administrative decision, the RO explained that appellant's spouse had no valid military service to be eligible for VA benefits. The RO further explained that identifying information was sent to the National Personnel Records Center (NPRC) and that the NPRC determined appellant's spouse did not perform any valid military service in the Commonwealth Army of the Philippines, including the recognized guerrillas, in the service of the Armed Forces of the United States, such that her claim for FVEC continued to be denied. After affording the Appellant the opportunity to submit additional evidence and argument, the RO reconsidered the claim in a March 2013 decisional letter, a June 2014 statement of the case (SOC), and supplemental SOCs (SSOCs) in dated in June 2016 and August 2016. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case, is sufficient to cure a timing defect). In making this determination, the Board acknowledges Tagupa v. McDonald, 27 Vet. App. 95 (2014), wherein the Court found that verification of service directly from the United States Department of the Army was required in the absence of evidence of delegation to the NPRC of the service department's authority to verify the nature of service. In November 2015, pursuant to the Board's August 2015 remand, the RO requested verification from the Department of the Army pursuant to the holding in Tagupa. Responses were received from the National Archives at the NPRC in November 2015 and June 2016, as will be discussed in further detail below. Moreover, to the extent that any notification provided to the appellant did not include specific information regarding veteran status, the Board finds that error is not prejudicial. There have been numerous certifications 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 during World War II. VA is bound by that certification. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997); Palor v. Nicholson, 21 Vet. App. 325 (2007); Duro v. Derwinski, 2 Vet. App. 530 (1992); Tagupa v. McDonald, 27 Vet. App. 95 (2014). In light of the binding certifications, any notification error is non-prejudicial as the Appellant is not entitled to benefit as a matter of law. Valiao v. Principi, 17 Vet. App. 229 (2003). 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." 38 U.S.C.A. § 107 Note. 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 FVEC, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service..." However, nothing in the 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." Id. The law addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II. The pertinent section 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; and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable. 38 U.S.C.A. § 107 Note. 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 contends that her spouse had recognized guerrilla service in the Philippine Commonwealth Army. Therefore, she asserts that she is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund as the surviving spouse. She states her husband served with the Guerilla unit "M" Co., 3rd Bn. 304 Infantry (F-23), from January 10, 1943 to May 6, 1946. Appellant has submitted several documents in support of her claim, to include a Certificate of Discharge from the Commonwealth of the Philippines, Philippine Army; a Certification from General Headquarters, Armed Forces of the Philippines; an Individual Reservist's Data Sheet; an Application for Recognition of Rights under the Republic Act; an Affidavit for Philippine Army Personnel; an Affidavit from I. B. L.; Applications for Old Age Pension (both (Veteran) and (Surviving Spouse)), Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office; an identification card for the Veterans Federation of the Philippines; and an Enlistment Record with Final Endorsement. None of these documents, however, satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service in the United States Armed Forces since they are not an official document of the appropriate United States service department or NPRC. The NPRC certified 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. Such certificates were made in August 2009, December 2010, December 2011, and May 2014. Notably, additional attempts at verification were made based on different service numbers and different unit assignments provided by the appellant, but in each case, NPRC certified that no change was warranted. The Board remanded the claim in August 2015 in order for VA to seek service verification from the United States Army pursuant to Tagupa. In letters dated in November 2015 and June 2016, the National Archives at the NPRC reported that based on review of the application provided by VA and the official information contained in the Army Organizational records, the National Archives at the NPRC was able to identify responsive records supporting the Department of the Army's previous negative service determination. It was further reported that after reviewing all the provided information, a claim folder was identified for appellant's spouse, which included an AGO Form 23 that listed "M" Company, 3rd Battalion, 23rd Infantry Regiment as the unit of assignment. The appellant's spouse was not listed on the roster for the unit indicated on AGO Form 23. It was finally noted that under the guidance established by the Department of Army for the post-War recognition program, the affidavits were not able to be accepted as a way to verify service. The document referenced in the November 2015 and June 2016 letters was subsequently received at the RO later in June 2016. See document from the East Central Luzon Guerrilla Area, Batan Military District, 1st Infantry Regiment, Company "M" 3rd Battalion. A Memorandum of Agreement Between the Department of the Army and The National Archives and Records Administration was also submitted to the RO. In pertinent part, the memorandum explained that the Army transferred physical custody of all records compiled during its program to recognize members of the Philippine Commonwealth Army in the Service of the Armed Forces of the United States during World War II to The National Archives and Records Administration. In this case, the findings of the NPRC and The National Archives and Records Administration 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 is binding on VA. Thus, the Board finds that the appellant's spouse has no qualifying service in the United States Armed Forces and is not a "veteran" for the purpose of establishing appellant's eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund. Accordingly, the appeal must be denied. The law, and not the facts, is dispositive of this appeal. Thus, the Board finds that VA's duties to notify and assist are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs