Citation Nr: 1807719 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-26 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. 2. Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION These matters come before the Board of Veterans' Appeals (Board) on appeal from administrative decisions issued in May 2010 and January 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The RO was informed of the claimant's death in October 2014 and his surviving spouse filed a motion for substitution as the appellant in the place of the claimant. In December 2015, the RO determined that the claimant's surviving spouse, referred to as the appellant, qualified as a proper substituted claimant and was therefore substituted for the deceased claimant for the purpose of pursuing the above-referenced FVEC claim. In November 2014 and May 2016, the Board remanded this matter for additional development. The appellant testified at a Board videoconference hearing held at the RO before the undersigned Veterans Law Judge in March 2017. A copy of the hearing transcript has been associated with the electronic claims file. 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). FINDINGS OF FACT 1. A May 2010 administrative decision denied entitlement to a one-time payment from the FVEC Fund. 2. Evidence received since the final May 2010 administrative decision is new, related to an unsubstantiated issue necessary to substantiate the claim, and raised a reasonable possibility of substantiating the appellant's claim for entitlement to a one-time payment from the FVEC Fund. 3. The National Personnel Records Center (NPRC) and the Department of the Army have certified that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States. CONCLUSIONS OF LAW 1. The May 2010 administrative decision, which denied entitlement to a one-time payment from the FVEC Fund, is final. 38 U.S.C. § 7105(b) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. As evidence received since the RO's May 2010 denial is new and material, the criteria for reopening the appellant's claim of entitlement to a one-time payment from the FVEC Fund are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 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 (2017); American Recovery and Reinvestment Act of 2009 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the appellant's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions, including pursuant to 38 C.F.R. § 3.103(c)(2) (2017) and Bryant v. Shinseki, 23 Vet App 488 (2010). 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). New and Material Evidence Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c) (2012). When a claimant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Smith v. West, 12 Vet. App. 312 (1999). VA regulation defines "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In this regard, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In a May 2010 administrative decision, the RO denied entitlement to a one-time payment from the FVEC Fund. The claimant did not initiate a timely appeal for that matter. There is also no indication that additional evidence was received between May 2010 and May 2011, which would have necessitated a reconsideration of the issue on appeal. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the May 2010 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In March 2013, the claimant sought to reopen the claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. This appeal arises from the RO's January 2014 administrative decision that found new and material evidence had not been submitted to reopen the claim of entitlement to a one-time payment from the FVEC Fund. As of December 2015, the claimant's surviving spouse, the appellant, is substituted for the deceased claimant for the purpose of pursuing his FVEC claim. Regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (finding that VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). New evidence added to the record since the May 2010 administrative decision includes a May 1979 form from Republic of the Philippines, Ministry of Defense; letters from the Barangay Captain; private medical treatment records for the claimant; a July 2013 certification from Armed Forces of the Philippines, Office of the Adjutant General; an October 2015 response from the Department of the Army; service verification responses from NPRC dated in December 2013, January 2014, and June 2014; and March 2017 Board videoconference hearing testimony from the appellant. Without addressing the merits of this evidence, the Board finds that the new evidence goes to the issue of whether the claimant and the appellant had submitted acceptable proof of service, and it is presumed credible for the limited purpose of reopening the claim. Justus, 3 Vet. App. at 512-13. Thus, this evidence is both new as it has not been previously considered by VA, and material, as it raises a reasonable possibility of substantiating the appellant's claim. Accordingly, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). Merits of the Reopened Claim As the Board reopened the claim as discussed above, and the RO adjudicated the issue on a de novo basis; there is no prejudice to the appellant by proceeding with a decision on the merits. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Under the American Recovery and Reinvestment Act, a new one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund, American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). 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. Nothing in the act, however, 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 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 claimant and appellant have submitted a number of documents asserted supported the claim on appeal. These records include personal affidavits regarding his service as a recognized civilian guerilla from December 1941 to June 1945; a May 1979 form from Republic of the Philippines, Ministry of Defense; letters from the Barangay Captain; private medical treatment records for the claimant; a July 2013 certification from Armed Forces of the Philippines, Office of the Adjutant General; and March 2017 Board videoconference hearing testimony from the appellant. None of the documents submitted by the claimant or the appellant were issued by a U.S. service department. Accordingly, the RO relied on verification of service from NPRC, which in February 2010, certified that the appellant had no service as a member of the Philippine Commonwealth Army, including in the recognized guerilla forces, in the service of the United State Armed Forces. In December 2013, January 2014, and June 2014, NPRC stated that no change was warranted in the prior negative certification. The United States Court of Appeals for Veterans Claims issued a decision in Tagupa v. McDonald, 27 Vet. App. 95 (2014), holding that a statement of no qualifying service from NPRC was not sufficient, and that VA must seek verification from the United States Army. Thereafter, the RO contacted the Department of the Army requesting verification of the claimant's asserted qualifying military service. In the October 2015 response, the Department of the Army indicated that based on their review of the information provided and official information contained in Army records maintained by NPRC, they were unable to change their previous negative service determination for the claimant. Here, the claimant and the appellant have not submitted any document issued by a U.S. service department, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, verifying the claimant's service in accordance with 38 C.F.R. § 3.203(a)(1). The NPRC, in conjunction with the Department of the Army, has continually certified that the claimant had no qualifying service. This verification is binding on VA such that VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). As such, the basic eligibility criteria for establishing entitlement to the one-time payment from the FVEC Fund have not been met. Additionally, the Board has considered the entirety of the statements and documentation submitted by the appellant, claimant, and others, including the March 2017 Board hearing testimony, pertaining to claimant's reported service in the civilian recognized guerillas. However, none of such documentation or lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203. On the contrary, such evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought. Rather, the evidence of military service currently of record showed that the claimant was a veteran of World War II/Philippine Revolution who served with ECLGA, not of the United States Armed Forces. The Philippine government has its own regulations and laws, which permit recognition of military service not recognized by the Department of the Army. The findings made by the Philippine government are not binding on the Department of the Army. Therefore, such evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the FVEC Fund. NPRC, in conjunction with the Department of the Army, has duly considered the appellant's application for VA benefits and have, in effect, certified on multiple occasions 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. The Board is bound by that certification. See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies within the service department, not with VA). The Board is sympathetic to the appellant's situation, and does not question the sincerity of her belief that she is entitled to the benefit sought. However, the pertinent legal authority governing entitlement to payments from the FVEC fund is clear and specific: It must be shown by verification of the United States service department that the claimant had qualifying service. The Board is bound by the law as written. 38 U.S.C. § 7104 (2012); Harvey v. Brown, 6 Vet. App. 416 (1994). In light of the foregoing, the Board finds that there is no legal theory that would permit a one-time payment from the FVEC fund. Accordingly, the appellant's claim must be denied. See Sabonis v. Principi, 6 Vet. App. 426, 429-30 (1994) (where law and not evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under the law). (CONTINUED ON NEXT PAGE) ORDER New and material evidence has been received in order to reopen a claim of entitlement to a one-time payment from the FVEC Fund. Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs