Citation Nr: 1815200 Decision Date: 03/12/18 Archive Date: 03/19/18 DOCKET NO. 01-04 537A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Basic eligibility for entitlement to VA benefits for substitution purposes. WITNESS AT HEARING ON APPEAL The deceased ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The original appellant died in December 2015. For clarity, the Board will refer to the original appellant as the deceased. The appellant is the deceased's surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2000 decision in which the Manila RO denied the deceased's request to reopen the matter of his basic eligibility for entitlement to VA benefits. The deceased filed a notice of disagreement (NOD) with the October 2000 RO decision in February 2001, and the RO issued a statement of the case (SOC) in March 2001. The deceased filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in May 2001. In September 2001, the deceased testified during a hearing before RO personnel. A transcript of that hearing is of record. In January 2002, the RO issued a supplemental SOC (SSOC) reflecting its continued denial of the petition to reopen. In July 2002, the deceased testified during a Board hearing before the undersigned Veterans Law Judge (VLJ), at the RO in Chicago, Illinois; a transcript of that hearing is also of record. In September 2003 and in April 2006, the Board remanded the petition to reopen the previously denied claim to the RO, via the Appeals Management Center (AMC) in Washington, DC. Subsequent to each remand, the AMC continued to deny the request to reopen (as reflected in December 2005, January 2006, and February 2009 SSOCs), and returned this matter to the Board for further appellate consideration. In April 2009, the Board issued a decision denying the deceased's petition to reopen his claim of basic eligibility for entitlement to VA benefits. In April 2010, a Deputy Vice Chairman of the Board denied the deceased's motion for reconsideration of the April 2009 Board decision. In June 2010, the deceased appealed this decision to the United States Court of Appeals for Veterans Claims (Court). By Memorandum Decision dated in May 2012, the Court set aside the Board's April 2009 decision and remanded the claim for further development and readjudication. In March 2013, the Board reopened the deceased's claim for basic eligibility for entitlement to VA benefits, and remanded the reopened claim to the agency of original jurisdiction (AOJ) for further development and readjudication. Following completion of additional development, the AOJ denied the claim on the merits (as reflected in a September 2013 SSOC), and returned this matter to the Board for further appellate consideration. In January 2014, the Board issued a decision denying the deceased's claim of basic eligibility for entitlement to VA benefits. The deceased appealed this decision to the Court. By Memorandum Decision dated in October 2014, the Court set aside the Board's January 2014 decision and remanded the claim for further development and readjudication. Thereafter, the Board remanded the claim in June 2015 consistent with the Court's October 2014 Memorandum Decision. Following completion of additional development, the AOJ denied the claim on the merits (as reflected in a June 2016 SSOC), and returned this matter to the Board for further appellate consideration. The appellant filed for substitution in May 2016, within one year of the deceased's death, and the AOJ granted the appellant the right to substitute for the deceased in pursuit of the claim he had pending to establish veteran status (as noted in the June 2016 SSOC). See 38 U.S.C. § 5121A (2012). Thus, the deceased's appeal continues. In November 2016, the Board again remanded this matter to the AOJ for further action consistent with the prior June 2015 remand directives. After accomplishing further development, the AOJ continued to deny the claim (as reflected in the November 2017 supplemental statement of the case (SSOC)) and returned this matter to the Board for further appellate consideration. As regards representation, the Board notes that, although the deceased had previously been represented by Disabled American Veterans and later private attorney Deanne L. Bonner, the appellant has not sought representation. As such, she is recognized as proceeding pro se in this appeal. While the deceased previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic, Veteran Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. Also, this appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The service department has certified that the deceased 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. CONCLUSION OF LAW The criterion of "Veteran" status for purposes of basic eligibility for entitlement to VA benefits has not been met. 38 U.S.C. §§ 101(2), 107, 5100, 5102, 5103, 5103A (2012); 38 C.F.R. §§ 3.1, 3.8, 3.9, 3.102, 3.159, 3.203 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). After a complete or substantially complete application for benefits is received, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004) and Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112; see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. With regard to claims which may turn on whether there was recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated by the VCAA to inform the claimant of the information or evidence necessary to prove the element of veteran status. Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) ("Since veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of VCAA notice concerning proof of veteran status is necessary in most, if not all, cases."). The deceased had, alternatively, sought service-connected compensation and nonservice-connected pension benefits. The matter now before the Board involves a claim to establish basic eligibility for VA benefits based upon attaining legal status as a "Veteran." The dispositive issue on appeal is limited to whether the appellant has established veteran status of the deceased for purposes of VA benefits. In this appeal, in a letter dated in August 2005,which was sent after initial AOJ adjudication of the claim, the RO provided notice to the deceased explaining what information and evidence was needed to substantiate his claim as to basic eligibility for entitlement to VA benefits, what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. Specifically, the RO informed the deceased that in May 2005, the RO requested his service treatment records and service personnel file from the National Personnel Records Center (NPRC) and later that month the NPRC informed them that they could not identify a record with his information. The letter also notified the deceased that they requested verification of Philippine service from NPRC and NPRC notified the RO that he had no service as a member of the Philippine Commonwealth Army including the recognized guerillas in the service of the US Armed Forces. The letter included the information that they used in an attempt to verify his service. The deceased was informed that he should provide proof of service (such as a DD-214, etc.) or corrections, if any, to the above mentioned service number, dates of service, and branch of service. Any error in the timing of the notice was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of the notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of the claim and given ample time to respond, but the AOJ also readjudicated the claims by way of the statement of the cases issued in December 2005, January 2006, February 2009, October 2010, December 2011, September 2013, June 2016, and November 2017 after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or an SSOC, is sufficient to cure a timing defect). For the reasons stated above, it is not prejudicial to the appellant for the Board to proceed to decide this appeal as the timing error did not affect the essential fairness of the adjudication. While the letter in August 2005 was addressed to the deceased and not the current appellant, issuance of another notice letter regarding the claim on appeal is not required as the appellant has been substituted for the deceased. See VBA Fast Letter 10-30 (August 10, 2010) (amended April 3, 2013) (If an adequate VCAA notice letter was previously sent to the original claimant, a new VCAA notice letter will not be provided to the individual requesting substitution). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. All relevant documents remotely relevant to the issue of veteran status were sent to the NPRC in an attempt to verify the deceased's military service. The NPRC's most recent negative response in attempting to verify the deceased's service in October 2017 is based upon all relevant documents associated with the record. See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed Cir. 2008) (holding that VA is required to forward "all procurable data, including lay statements" to the service department for verification). Also of record and considered in connection with the appeal are transcripts of the deceased's September 2001 RO hearing, and July 2002 Board hearing, along with various written statements provided by the appellant and the deceased, various individuals who served with the deceased, and the former representative. During, the most recent, July 2002 Board hearing, , the undersigned noted the issue on appeal and the testimony elicited and provided focused on establishing veteran status. The deceased and his representative provided specific argument and information relevant for service verification purposes, including a specific request for another attempt at verification. While the undersigned did not explicitly suggest the addition of any specific, additional evidence, on these facts, such omission was harmless. As indicated in the extensive procedural history noted in the remand, above, following the hearing, the claim was remanded for further action on several occasions-to include pursuant to Court directives-and, as a result, additional evidence was ultimately added to the claims file. Thus, the hearing was legally sufficient. See 38 C.F.R. 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010) ( The Board finds that the AOJ has substantially complied with the Board's March 2013 remand directives by sending the deceased notices in April and July 2013, and requesting verification from the NPRC in July 2013, enclosing all documents identified in the remand directives. See, e.g., D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial compliance, rather than strict compliance, with the Board's remand directives is required). Notably, the AOJ's letters to the deceased did not specifically request him to "submit any other evidence and/or information which is pertinent to verifying his claimed qualifying service" (emphasis original) as instructed by the Board. However, after review of the entire evidentiary record to include the April 2013 attorney communication, the Board finds that the deceased and his representative clearly understood the importance of submitting such documents. In October 2013,the deceased again submitted additional documents which were in his possession. Given the actual knowledge of the deceased and his attorney, any error or omission in in the notice provided is deemed non-prejudicial. The Board also finds that the AOJ has substantially complied with the Board's June 2015 and November 2016 remand directives to contact the Department of the Army to verify the deceased status as a Veteran or if the service department sends the request to the NPRC, then the service department must be asked to certify that the NPRC findings are in accord with the records available to that service department consistent with the Court's decision in Tagupa v. McDonald, 27 Vet. App. 95 (2014). In Tagupa, the Court held that the NPRC, as an agency of the National Archives and Records Administration (NARA), did not constitute a "service department" for purposes of verifying service under 38 C.F.R. § 3.203(c). The Court found that although the Department of the Army transferred responsibility for providing "reference services" on the collection of Philippine Army files to the NARA pursuant to a Memorandum of Agreement (MOA) in 1998, it was unclear whether the MOA also authorized the NARA to make administrative determinations verifying service. The Court held that because the language of the MOA was ambiguous on this issue, it could not find that the Department of the Army delegated its statutory duty to make administrative determinations verifying service to the NARA. Thus, the Court held that section 3.203 required verification of service from the relevant service department itself, instead of the NPRC, and therefore remanded the matter for VA to seek verification of service directly from the Department of the Army. Pursuant to the June 2015 and November 2016 Board remands, the AOJ submitted an information request to the NPRC/NARA. Responses were received in June 2016 and November 2017, which indicate that the NPRC/NARA was able to identify responsive records supporting the Department of the Army's negative service certification, which was originally rendered in March 1992. The Board recognizes that an information request was not sent directly to the Department of the Army, as instructed in the June 2015 and November 2016 remands. However, the AOJ has associated with the claims file a newly executed January 2016 Memorandum of Agreement (MOA) between NARA and the Department of the Army for the NPRC/NARA to verify service for individuals that performed duty for the Philippine Commonwealth Army. The MOA explains that all pertinent Department of the Army records were forwarded to the NPRC/NARA for purposes of such verification, and that the Army no longer maintains documents that would allow a separate search for service verification. The new MOA supersedes the 1998 MOA upon which the Court based its holding in Tagupa and now clarifies that the Department of the Army has in fact delegated its authority to NARA to respond regarding the U.S. Army determinations. In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. As such, the appellant is not prejudiced by the Board proceeding to a decision on the claim herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis An application for disability compensation consists of five elements: (1) status as a veteran, (2) existence of a disability, (3) service connection of that disability, (4) degree of disability, and (5) effective date of benefits. Vargas-Gonzalez v. Principi, 15 Vet. App. 222, 227-8 (2001), citing Barrera v. Gober, 122 F.3d 1030, 1037 (Fed. Cir. 1997). VA benefits are available for certain types of Philippine service, under specific circumstances. See 38 C.F.R. §§ 3.40, 3.41. The following certifications by the service departments will be accepted as establishing guerrilla service: (i) recognized guerrilla service; (ii) unrecognized guerrilla service under a recognized commissioned officer only if the person was a former member of the United States Armed Forces (including the Philippine Scouts) or the Commonwealth Army. 38 C.F.R. § 3.40(d)(2). For the purpose of establishing entitlement to 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 if the evidence meets the following conditions: (1) the evidence is a document issued by the service department 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. 38 C.F.R. § 3.203(a). In addition, 38 C.F.R. § 3.203(c) provides in pertinent part that "[w]hen a claimant does not submit evidence of service or the evidence submitted does not meet the requirements of paragraph (a) of this section, the VA shall request verification of service from the service department." VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In addition, service department findings are binding on the VA for purposes of establishing service in the U.S. Armed Forces. Id.; see also Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). A person seeking VA benefits must first establish by a preponderance of the evidence that the service member upon whose service such benefits are predicated has attained the status of veteran. D'Amico v. West, 12 Vet. App. 264 (1999) rev'd on other grounds, 209 F.3d 1322 (2000); Holmes v. Brown, 10 Vet. App. 38, 40 (1997). The appellant contends that the deceased has qualifying military service for purposes of VA benefits. The deceased submitted numerous documents which, among other things, note his service from September 3, 1943 to April 29, 1946 in the Philippines, including service in "H" Company, 2nd Battalion, 31st Infantry Regiment of the Bulacan Military District, as well as that unit's attachment to the U.S. 6th Army. In particular, the claims file contains the following documents: * a 1946 Affidavit for Philippine Army (PA) Personnel reporting the appellant's service as a "Civilian guerilla" during World War II (received in February 1989); * a September 7, 1987, Certification from the General Headquarters of the Armed Forces of the Philippines listing the appellant under service number [REDACTED] Infantry (inactive) with guerilla military service with "H" Co., 2nd Bn, 31st Inf. BMD (F-23) from September 30, 1943 to April 29, 1946, and also noting the appellant was not carried on the Approved Revised Reconstructed Guerilla Roster of 1948 but had been paid arrears (received in February 1989); * an April 27, 1946, Processing and Identification Slip from the PA 4th Replacement Battalion Headquarters (received in February 1989); * an April 29, 1946, PA Certificate of Relief from Active Duty Discharge reflecting a civilian guerilla discharge (received in February 1989); * a March 7, 1947, Official Certification by an Assistant Adjutant General reflecting that the appellant was carried on the approved guerilla roster of the 31st and 32nd Bulacan Military District FCLGA as a private (received in February 1989); * an April 30, 1946, Certificate from a Commanding Officer reflecting that the appellant was an active member of Bulacan Military District and fully included in the Official Roster of Troops approved by AFPAC (received in February 1989); * a 1946 Clearance Slip from the PA 4th Replacement Battalion Headquarters (received in December 1991); * an April 1946, Oath and Certification of Enlistment with examination report (received in December 1991); * a February 1945, PA Personal Record (received in December 1991); * an April 29, 1946, oath certification with emergency contact notice information (received in December 1991); * an April 1946, Affidavit for PA Personnel in handwriting reflecting a civilian guerilla status (received in December 1991); * an April 1946, Affidavit for PA Personnel in typeset reflecting a civilian guerilla status (received in December 1991); * a February 1947, Official Certification issued by PA Headquarters at Camp Murphy, Quezon City (received in October 1995); * a March 1947, Affidavit from a Commanding Officer Lieutenant Colonel of the PA Infantry (received in October 1995); * a summary of service submitted by the appellant in October 1995; * a summary of service submitted by the appellant in January 1988; * a newspaper article entitled Fighting to Become a Citizen (received in January 1988); * a September 21, 1985, letter from the U.S. Army Reserve Component, Personnel Services Directorate (received in January 1988); * a summary of service submitted by the appellant on January 22, 1999; * a copy of the appellant's September 1997 RO hearing transcript with corrections (received in August 1999); * an April 12, 1983, certification from the Philippine Veterans Affairs Office (received in August 2000); * a statement by the appellant received in February 2001; * transcript of appellant's hearing before the Board in July 2002; * an article entitled Pinoy WW II Vets Without Records Can Get US Citizenship (received in August 2005); * a September 1994, letter from the appellant to the U.S. Army Finance Center (received in August 2005); * a Certificate of Eligibility from The American Legion (received in January 2006); * an affidavit from E.P.R. dated January 2006 (received in March 2006); * a statement by the appellant dated February 26, 2006 (received in March 2006); * an affidavit from P.O.D., dated March 2006 (received in March 2006); * an affidavit from M.B.F., dated March 2006 (received in March 2006); * an article from Philippine News with handwritten comments (received in December 2010); * a picture of the appellant in military uniform (received in December 2010); and * a statement by the appellant (VA Form 9) received in December 2010. In this case, the appellant has not submitted a DD Form 214 or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1). The various certifications from entities of the Republic of Philippines submitted by the appellant fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department but rather documents from the Philippine government. Similarly, while the appellant has submitted an affidavit from an individual claiming who identified himself as a U.S. Army officer as well as documents from other individuals, the documents themselves do not comply with 38 C.F.R. § 3.203 as they are not issued by the service department and, since the information contained within conflicts with NPRC certifications, in the opinion of the Board the documents contents do not appear to be accurate. Nonetheless, pursuant to 38 C.F.R. § 3.203(c), VA submitted all of the above documents to the NPRC in an attempt to verify qualifying military service for VA compensation purposes. In October 2017, after reviewing copies of these documents and other information in their possession, the NPRC notified the RO that they were able to identify responsive records supporting the Department of the Army's previous negative service determination. The NPRC noted that it y did not identify a claim folder for the Veteran and was unable to locate his name on the index files for Guerilla service. A copy of the PA AGO Form 23, Affidavit for Philippine Army Personnel does not, in itself, establish facts pertaining to service. That service must be authenticated from the official archives, which were recovered from the Philippines after World War II. This verification is binding on VA such that VA has no authority to change or amend the finding. Duro, 2 Vet. App. at 532. Establishing veteran status with qualifying Philippine service is limited by the requirements and proscriptions of 38 C.F.R. § 3.203 and § 3.41. These provisions require that an applicant prove the requisite service with either official documentation issued by a United States service department or verification of the claimed service by such a department. Soria, 118 F.3d at 748; Palor, 21 Vet. App. 325 (2007). There are no other means. Id. Based upon the record in this case, the deceased had no qualifying service as a member of the Philippine Commonwealth Army or the recognized guerrillas in the service of the United States. Accordingly, as the deceased may not be considered a "Veteran" for the purpose of basic eligibility for entitlement to VA benefits, the claim must, therefore, be denied. ORDER The claim of basic eligibility for entitlement to VA benefits, for substitution purposes, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs