Citation Nr: 18144954 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-42 486 DATE: October 25, 2018 ORDER The petition to reopen the claim for a one-time payment from the Filipino Veterans Equity Compensation (FVEC) fund is granted and, to that extent only, the appeal is granted. A one-time payment from the FVEC fund is denied. The appellant is not a veteran for the purpose of entitlement to VA benefits, and basic eligibility to VA disability benefits is denied. FINDINGS OF FACT 1. A June 2012 Board decision denied the appellant’s claim of entitlement to a one-time payment from the FVEC. 2. The evidence received since the June 2012 Board decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to a one-time payment from the FVEC. 3. The National Personnel Records Center (NPRC) and the Department of the Army (Army) have certified that the appellant had no service as a member of the Philippine Commonwealth Army (PCA), including the recognized guerrillas, in the service of the Armed Forces of the United States. CONCLUSIONS OF LAW 1. The June 2012 Board decision denying the appellant’s claim of entitlement to a one-time payment from the FVEC is final. 38 U.S.C. § 4004(b) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1100 (2011). 2. New and material evidence has been received sufficient to reopen the claim of entitlement to a one-time payment from the FVEC. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2018). 3. The requirements for legal entitlement to a one-time payment from the FVEC have not been met. 38 U.S.C. §§ 101(2), 107(b) (2012); 38 C.F.R. §§ 3.1 (d), 3.9, 3.40, 3.41, 3.203 (2018); American Recovery and Reinvestment Act of 2009 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). 4. The appellant is not a veteran for the purpose of establishing entitlement to VA benefits. 38 U.S.C. §§ 101(24), 107, 1110 (2012); 38 C.F.R. §§ 3.1, 3.6, 3.40, 3.41, 3.203 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant filed a petition to reopen his claim of entitlement to FVEC benefits in June 2013. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO). The case was previously before the Board in September 2017, at which time the Board remanded the appellant’s claim in order to afford him with a hearing before the Board. The appellant failed to appear at his scheduled hearing and has not requested that the Board reschedule his hearing, and the Board thus finds that there has been adequate compliance with its remand directives. VA’s duties to notify and assist do not apply in this case because the claim at issue is limited to statutory interpretation. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2002). VA is not required to provide notice of the information and evidence necessary to substantiate a claim when that claim cannot be substantiated because either there is no legal basis for the claim or undisputed facts render the claimant ineligible for the claimed benefit. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004). The Board finds no prejudice toward the Veteran in proceeding with the adjudication of his claim. New and Material Evidence Decisions of the RO and the Board that are not appealed in the prescribed time are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156; Smith v. West, 12 Vet. App. 312 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran’s claim of entitlement to a one-time payment from the FVEC fund was last finally denied in a June 2012 decision of the Board, which found that the appellant did not have the requisite service to entitle him to payment from the FVEC fund. The Veteran has since submitted evidence alleging guerrilla service in “B” Company, 180th Battalion, Pangasinan Military Area (PMA), Luzon Guerrilla Army Forces (LGAF). That evidence is new because the appellant had not previously claimed service in this particular company. Given the evidence relates to the possibility of the appellant having recognized guerrilla service, the Board finds that the newly submitted evidence relates to an unestablished fact necessary to substantiate the claim. As new and material evidence has been received, the claim for a one-time payment from the FVEC fund is reopened. FVEC Fund and Basic Eligibility to VA Disability Benefits A “veteran” is a person who served in the active military, naval or air service, and was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes active duty, which is defined as full time duty in the Armed Forces. 38 C.F.R. § 3.6. The “Armed Forces” consist of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. Service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, is recognized service for certain VA purposes. 38 U.S.C. § 107; 38 C.F.R. § 3.40. Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). For eligible persons who accept a payment from the FVEC Fund, the payment constitutes a complete release of any claim against the United States by reason of that service. However, nothing in the act prohibits a person from receiving any benefit (including health care, survivor, or burial benefits) that the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of the Act. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). For payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II, VA 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 the Act, submitted a claim to VA for benefits under the act. The application for the claim must contain the information and evidence VA requires. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). An eligible person is any person who 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 was discharged or released from service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). When service department certification is required, the service department’s decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c); Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant’s only recourse lies with the relevant service department, not with VA. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203; Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). The appellant originally filed a claim for a one-time payment from the FVEC in February 2009, claiming recognized guerrilla service in “C” Company, 1st Battalion, 6th Regiment. In November 2009, the RO noted that the appellant’s name was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) and requested verification from the NPRC that the appellant had the claimed recognized guerilla service. In January 2010, the NPRC responded that the appellant had no service as a member of the PCA, including the recognized guerrillas, in the service of the United States Armed Forces. In March 2010, the appellant submitted a document listing his name in a roster from the United States Army Forces in the Far East (USAFFE), Luzon Guerrilla Army Forces (LGAF), Headquarters Squadron, PMA, attached to Aircraft Control & Warning Squadron H, 5275th Aircraft Control & Warning Group P. In June 2010, the RO requested verification from the NPRC that the appellant had the claimed recognized guerilla service. In July 2010, the NPRC responded that the appellant had no service as a member of the PCA, including the recognized guerrillas, in the service of the United States Armed Forces. In August 2010, the RO broadly requested verification from the NPRC that the appellant had guerrilla service in the USAFFE LGAF. In September 2010, the NPRC responded that the appellant had no service as a member of the PCA, including the recognized guerrillas, in the service of the United States Armed Forces. Following the Board’s June 2012 denial of the appellant’s claim based on the above information, the appellant filed a petition to reopen his claim in June 2013. In October 2013, the Office of the Adjutant General of the Armed Forces of the Philippines stated that the Appellant served in “B” Company, 180th Battalion, Pangasinan Military Area (PMA), LGAF, from approximately May 1942 to February 1945. In November 2013, the appellant stated that he had recognized guerilla service in “C” Company, 1st Battalion, 6th Regiment, and “B” Company, 180th Battalion, PMA, LGAF. The Appellant claimed dates of service from February 1945 to September 1946. In February 2014, the appellant stated that he had recognized guerilla service from 1943 to 1945, at which time he served at the headquarters at Pozurobio, Pangasinan. The Appellant indicated that he was discharged in 1946. Also in February 2014, the RO requested that the NPRC confirm the appellant’s claimed guerilla service in “B” Company, 180th Battalion, PMA, LGAF, and in “C” Company, 1st Battalion, 6th Regiment, Headquarter Squadron PMA attached to Aircraft Control and Warning Squadron “H”, 5275th Aircraft Control and Warning Group “P”, USAFFE LGAF. The RO’s request encompassed the dates from May 1942 to February 1946. In May 2014, the NPRC indicated that no change was warranted in its previous negative certification. In April 2015, the RO requested a reverification of the appellant’s service from the Department of the Army (Army). In October 2015, the Army’s Human Resources Command indicated that it was unable to change its previous negative service determination for the appellant. The Army recognized that the appellant had stated that he served in “C” Company, 1st Battalion, 6th Regiment in the PMA, LGAF. The Army indicated that it found no roster listing a 1st Battalion, 6th Regiment in the PMA, LGAF. A search of all rosters in the PMA LGAF provided a negative result, and the Appellant’s name was not listed on any roster for the units in the PMA, LGAF. The Army was unable to accept the Certifications from General Headquarters, Armed Formes of the Philippines, as verification of service. Upon review of this evidence, the Board notes that both the NPRC and the Army have repeatedly certified that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Moreover, the service documents provided by the appellant do not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service because these are not official documents of the appropriate United States service department or NPRC. Accordingly, these documents may not 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. 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. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Based upon the record in this case, the appellant had no qualifying service in order to meet the basic eligibility criteria for establishing entitlement to either VA disability benefits or a one-time payment from the FVEC. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Flynn