Citation Nr: 1807568	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-12 403	)	DATE
	)
	)

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


THE ISSUE

Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC).


ATTORNEY FOR THE BOARD

Dan Brook, Counsel


INTRODUCTION

The Appellant seeks recognition as a veteran for purposes of entitlement to a one-time payment from the FVEC.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 decisional letter from 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) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

Both the service department and the Department of the Army have certified that the Appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II.


CONCLUSION OF LAW

The criteria for obtaining a one-time payment from the FVEC are not met.  38 U.S.C. §§ 107, Note, 501(a) (2012); 38 C.F.R. § 3.203 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  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. § 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 an initial October 2010 decision, the AOJ explained that the National Personnel Records Center (NPRC) certified that as the Appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II.  Thus, he was not legally entitled to payment from the FVEC.  The AOJ also explained that decisions concerning verification of military service are the responsibility of NPRC and are
binding on VA, which has no authority to change or amend the findings.  Subsequently, in the June 2013 administrative decision, the AOJ reiterated that the as the NPRC had certified that the Appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II, he was not legally entitled to payment from the FVEC. 

After affording the Appellant the opportunity to submit additional evidence and argument, the AOJ reconsidered his claim in the February 2014 statement of the case and the October 2015 supplemental statement of the case.  Medrano v. Nicholson, 21 Vet. App. 165   (2007); Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); 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).  The Board finds that overall notice received by the Appellant is sufficient, including in regard to the element of veteran status.  

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 the Appellant's service.  In March 2015, the AOJ requested verification from the Department of the Army pursuant to the holding in Tagupa. The Department of the Army issued a response in October 2015 finding no change was warranted in the prior negative certifications. 

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.  Numerous times the service department and Department of the Army have certified 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 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 these binding certifications, any notification error is non-prejudicial as the Appellant is not entitled to the benefit in this case as a matter of law.  Valiao v. Principi, 17 Vet. App. 229 (2003).

II.  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).

Here, the Appellant contends that he had active military service from June 1944 until February 1946 in the United States Armed Forces of the Far East (USAFFE) as a recognized guerilla.  See e.g. February 2009 claim.  He submitted March1992, December 1994 and February 2013 certifications from the Armed Forces of the Philippines indicating that he was a Recognized Guerilla during World War II who served with C Company 1st Battalion, 14th Infantry U.S. Army of the Philippines
(USAFIP NL); a February 1946 Affidavit of Philippine Army Personnel, indicating Philippine Army service during World War II; a December 1994 document that appears to be from the Office of the Adjutant General (OTAG) of the Philippine Army and appears to include the Appellant among a list of guerillas; a copy of application forms for Philippine Veterans old age pension; copies of various Philippine Veteran-related identification cards and documents ; and a copy of a an application for a Philippine Veterans educational benefit.  However, none of these documents satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service in the United States Armed Forces: they are not an official document 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 one-time payment from the FVEC.

The AOJ submitted the pertinent information provided by the Appellant to the NPRC for verification.  The NPRC certified in May 2013 and again in April 2014 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.  This verification is binding on VA such that VA has no authority to change or amend the finding.  Duro, 2 Vet. App. at 532 (1992).

Also, in an October 2015 memorandum, the Department of the Army found that after review of the Appellant's file and the information contained in the NPRC records, it was unable to change the previous negative service determination for the Appellant. It noted that it did identify a claims folder for the Appellant, which included an "AGO 23" that showed he served in U Company, 2nd Battalion, 3rd Pangasinan Regiment.  However, the Department of the Army determined that this unit is not listed on the roster of guerilla units for Pangasinan Regiments, which are recognized as having been in the service of the Armed Forces of the United States.  The Department of the Army also noted that it was unable to accept the Certifications from General Headquarters, Armed Forces of the Philippines, as verification of service. 

Thus, in summary, the NPRC and the Department of the Army 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, as 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, and one-time payment from the FVEC is not warranted.

  
ORDER

A one-time payment from the FVEC is denied.




____________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs