Citation Nr: 1807137	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  11-22 153	)	DATE
	)
	)

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


THE ISSUE

Whether the appellant is a Veteran for the purposes of establishing entitlement to a
one-time payment from the Filipino Equity Compensation (FVEC) fund.


ATTORNEY FOR THE BOARD

Dominic Jones, Associate Counsel










INTRODUCTION

The appellant is seeking entitlement to a one-time payment from the FVEC fund.
The appellant has asserted that he had qualifying service from September 1944 to
April 1945.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of a Department of Veterans Affairs (VA) Regional Office
(RO).

This issue was previously before the Board in July 2015, March 2017, and October 2017.  In its July 2015 and March 2017 decisions, the Board remanded the claim in order to afford the appellant a hearing before the Board.  A hearing was most recently scheduled for July 2017, but the record reflects the appellant did not attend.  In its October 2017 decision, the Board remanded the claim to the RO in order verify the appellant's claimed service with the Department of the Army.

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


FINDING OF FACT

The U.S. Department of the Army has been unable to verify that the appellant had qualifying service in the service of the U.S. Armed Forces.


CONCLUSION OF LAW

The criteria for establishing that the appellant was a "veteran" have not been met, and, thus, he is not eligible for FVEC benefits based on his service.  38 U.S.C. §§ 101, 107 (2012); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant contends that he has qualifying service in the Philippines military during World War II.

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

I. Legal Criteria

Generally, in order to qualify for VA benefits, a claimant or the party upon whose service the claimant predicates the claim must be a "veteran."  Tagupa v. McDonald, 27 Vet. App. 95, 98 (2014) (citing Donnellan v. Shinseki, 24 Vet. App. 167, 170-71 (2010) (internal quotations omitted)).  A "veteran" is "a person who served in the active military, naval, or air service," and was discharged under conditions other than dishonorable.  38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).

In July 1941, President Roosevelt placed the military forces of the Philippines in the service of the U.S. Armed Forces of the Far East, and members of the Philippine forces who fought against the Japanese or who fought as guerrillas during the Japanese occupation may be eligible for certain veteran's benefits from the United States.  See id. (citing Capellan v. Peake, 539 F.3d 1373, 1375 (Fed.Cir.2008)); 38 C.F.R. § 3.40 (allowing dependency and compensation and burial benefits for Philippine guerrilla service), 3.203 (detailing the general evidentiary requirements for proving veteran status).

The evidentiary requirements for proving service are set forth in 38 C.F.R. § 3.203, which provide in pertinent part:

(a) Evidence submitted by a claimant.  For the purpose of establishing entitlement to . . . dependency and indemnity compensation or burial benefits the Department of Veterans Affairs may accept evidence of service submitted by a claimant (or sent directly to the Department of Veterans Affairs by the service department), 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 was 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 or, if the copy was submitted by an accredited agent, attorney or service organization representative who has successfully completed VA-prescribed training on military records, and who certifies that it is a true and exact copy of either an original document or of a copy issued by the service department or a public custodian of records; and

(2) The document contains needed information as to length, time and character of service; and

(3) In the opinion of the Department of Veterans Affairs the document is genuine and the information contained in it is accurate.

(c) Verification from the service department.  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.

II. Analysis

With regard to the requirements of 38 C.F.R. § 3.203(a), the appellant has not submitted evidence that is a document issued by a service department.  VA must therefore request verification from the relevant service department.  Attempts were made to verify the appellant's service.  The first attempt was made in November 2009, and a negative response was received from the National Personnel Records Center (NPRC) in January 2009 stating that the appellant had no service as a member of the Philippine Commonwealth Army.  Another attempt, based on additional evidence submitted by the appellant, was made in February 2012.  Nonetheless, the same response was received in March 2012.

In its October 2017 decision the Board highlighted that Tagupa held that VA was required under 38 C.F.R. § 3.203(c) to request verification of an appellant's service from the service department.  Tagupa further noted that after the promulgation of section 3.203 the Department of the Army executed a 1998 memorandum of agreement (MOA) with the National Archives and Records Administration (NARA) that assigned the responsibility of providing reference service on the collection of the Philippine Army files and archival holdings.  In that case, the United States Court of Appeals for Veterans Claims (Court) took judicial notice of the 1998 MOA, but found the language of the 1998 MOA to be ambiguous, and that ambiguity precluded the Court from finding that the Department of the Army had delegated to NARA its duty to make administrative determinations verifying service.  As such, verification from the Department of the Army, rather than NARA, was required.  Thus, the Board remanded this appellant's claim for verification from the Department of the Army, rather than the NPRC.

On remand, another request for verification of the Veteran's service was made in November 2017 and highlighted various records in the claims file that the Veteran purported to support his claim of qualifying service including his Affidavit for Philippine Army Personnel, various identification cards, photographs, a military service certificate, and a Certification of the Adjutant General, among others.  Nonetheless, later in November 2017 a response was received from the NPRC stating that there was no change in the prior negative certification.  A November 29, 2017 letter from the NPRC stated that based upon its review of the application provided by VA and information contained in the Army Organizational records, it was able to identify responsive records supporting the previous negative service determination.  The NPRC noted the appellant's name was not listed on the roster for the unit provided on the form the Veteran submitted to support his claim.  Indeed, the appellant's name was not listed on any roster.  This letter further noted that a Certification from General Headquarters Armed Forces of the Philippines was submitted, but that under guidance from the Department of the Army this could not be accepted to verify service.

The Board takes note that notes that Tagupa found the 1998 MOA too ambiguous to determine whether the Department of the Army had delegated its administrative determination authority, and that the Board in its October 2017 decision therefore requested verification directly from the Department of the Army pursuant to the Tagupa holding.  Nonetheless, submitted with the November 2017 response from the NPRC was a copy of a new MOA between the Department of the Army and NARA.  This MOA specifically noted that it superseded the November 4, 1998 MOA.  The new MOA notes that the responsibility of NARA would be to receive and research inquiries from U.S. government agencies concerning personnel statuses recorded in Philippine Army files.  In cases where records in those files evidenced either a favorable or unfavorable U.S. Army determination concerning personnel status, NARA was empowered to respond directly to the requestor and provide a basis of the favorable or unfavorable determination contained in the Philippine Army files.

The Board finds the new MOA between the Department of the Army and NARA sufficient for NARA- and thus the NPRC-to provide the verification of veteran status necessary in the present case.  The new MOA indicates that while the Department of the Army has legal custody of the relevant records, NARA has physical custody and is empowered to research and provide responses to claimants.  That is, the Department of the Army has delegated its verification authority, which sufficiently addresses the concerns of Tagupa.

As noted above, the NPRC reviewed the request for verification and highlighted that the Veteran's name was not listed on the roster for the unit he himself provided.  In light of this, there is no basis to find that the appellant had recognized service for purposes of establishing entitlement to a one-time payment from the FVEC fund.  Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102 are not applicable.  Therefore, the appeal is denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).
ORDER

The appeal to establish veteran status for the purposes of establishing entitlement to a one-time payment from the FVEC fund is denied.




____________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs