Citation Nr: 21006363 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-05 642 DATE: February 3, 2021 ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC) is denied. FINDING OF FACT The service department has certified that the deceased 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. CONCLUSION OF LAW The criteria for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC). have not been met. 38 U.S.C. § 101, 107 (2018); 38 C.F.R. § 3.3, 3.40, 3.41 3.203 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The issue on appeal is whether the claimant had service qualifying him for payment from the Filipino Veterans Equity Compensation Fund. The appellant claims as the claimant’s surviving spouse and has been substituted in the claim as such. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board decision in December 2012 denied the claim. The claimant thereafter appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2014 Court Memorandum Decision, the Court vacated the Board’s December 2012 decision and remanded for compliance with the Memorandum Decision. However, while the matter was pending and prior to the issuance of the December 2014 Memorandum Decision, the claimant passed away in August 2014. As such, the Court issued the December 2015 Memorandum Decision that withdrew the December 2014 Memorandum Decision and set aside the December 2012 Board decision. Since the December 2012 Board decision was vacated by the December 2015 Court Memorandum Decision, the claim for one-time payment from the FVEC Fund has remained pending before the Board. In its 2014 Memorandum Decision, the Court held that verifications of service issued by the National Personnel Records Center (NPRC) do not meet the criteria under the applicable law and regulations described in the analysis of the issue below, absent evidence of a statutorily delegated duty. The Court cited the case of Tagupa v. McDonald, 27 Vet. App. 95 (2014), as governing the circumstances for the claimant here. After the Tagupa case was decided in 2014, a January 2016 Memorandum of Agreement Between the Department of the Army and The National Archives and Records Administration (MOA), delegated responsibility of verifying military service to the National Archives and Records Administration (NARA), of which the NPRC is a part. The case was remanded by the Board in December 2016 for VA to forward documents submitted by the appellant and the deceased claimant to the appropriate service department (as separate from the NPRC) and to request verification of whether the deceased claimant had qualifying service. In compliance with the remand, the RO requested verification from the service department, citing the Tagupa case and attaching documents, including the Form 23 submitted by the claimant. No response from the service department was provided in response to this remand, however, the record shows a negative response on February 26, 2016. A February 2017 response from the NPRC stated that it was able to identify responsive records supporting the Army’s previous negative service determination. The NPRC reported that it did a search of the S.O. #270 (dated November 14, 1945), and although the claimant’s name appears on the Special Order, it is insufficient evidence to determine if the listing pertains to the claimant, and if the claimant showed up for service on that day. The NPRC further stated that Completion of an Affidavit for Philippine Army Personnel, PA AGO Form 23 does not establish facts pertaining to claimed service; that service must be authenticated from the official archives which were recovered from the Philippines after World War II. According to the NPRC, under guidance established by the Department of the Army for post War recognition, the NPRC is not able to accept the Certification from General Headquarters Armed Forces of the Philippines or any individual affidavits to verify service. The Board finds that the combined actions constitute substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The January 2016 MOA delegated the authority of verifying service to the NARA/NPRC. According to the MOA, where there is no file or records found indicating a determination by the Army, NARA was to forward the inquiry along to the Army Human Resources Command. However, where, as here, the existing records indicate an unfavorable determination, NARA is to respond to the request. Additionally, NARA is to respond to requests from U.S. government agencies. The response from the NPRC indicates the documents submitted by the claimant were considered by the Army in its negative determination. Furthermore, the Army had responded negatively according to the February 2016 response to VA’s request for information. Thus, the directive to have the service department verify documents was met in a meaningful manner. Neither the appellant nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC). The appellant asserts that she is entitled to a one-time payment under the FVEC based on her late husband’s service. During his lifetime, the claimant contended that he was inducted into the recognized guerrillas of the Philippine Army in 1942 and was discharged honorably on November 14, 1945. He also asserted he fought against the Japanese from October 1944 to March 1945, under "D" Co. Fil-American Troops and on May 19, 1945, he was inducted and joined USAFIL NL. Under the American Recovery and Reinvestment Act enacted in 2009, a one-time benefit is provided for certain Philippine veterans to be paid from the “Filipino Veterans Equity Compensation Fund.” 38 U.S.C. § 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. Under the FVEC legislation, a surviving spouse can be paid benefits due to a qualified person if the claimant filed a claim following the enactment of the Act on February 17, 2009, but died prior to the payment of the benefit. Suguitan v. McDonald, 27 Vet. App. 114, 115 (2014). That is the case here. As the appellant’s late husband had a claim pending at the time of his death, the appellant may continue his claim 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. § 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). The appellant or claimant have not submitted a Department of Defense Form 214, Armed Forces of the United States Report of Transfer of Discharge (DD-214), or an original Certificate of Discharge. However, the claimant has submitted several documents in support of his claim. Specifically, the claimant submitted a document from the headquarters of the U.S. Army of the Philippines North Luzon (USAFIP NL), Camp Spencer regarding special order number 270. This document listed names of individuals under assignment of the USAFIP NL, and were honorably discharged from the service effective November 14, 1945. The claimant’s name was on this list. Additionally, the claimant submitted a copy of a December 1945 Affidavit for Philippine Army Personnel in support of his claim. This document describes the length and time of the claimant’s service as a guerilla. It notes civilian guerrilla service. The claimant and the appellant also submitted in support of the claim: a May 1945 letter (special order No. 23) from the headquarters of the 2nd battalion 15th Infantry, USAFIP NL showing the claimant’s assignment there; a November 1945 payroll certification from the Commonwealth of the Philippines; an April 1948 certification from Headquarters National Defense Forces, Camp Murphy, Quezon City, stating that records show in Form 23, “Military Services, Guerrilla”; several affidavits from individuals who certified that they served with the claimant; an April 1942 Oath of Allegiance by the claimant; a certificate of membership in the FIL-American Irregular Troops; an October 14, 1947 document; and a November 8, 1945 Certificate of Discharge, which appears incomplete. The claims file also contains an April 2009 letter from the General Headquarters of the Armed Forces of the Philippines, Office of the Adjutant General, signed by V.S.P, Admin Officer III. This letter, entitled “CERTIFICATION”, noted the claimant’s military status, the date he joined the service, the organization with which he served, the date he was processed, and the date he was discharged. The Board notes that the document from the headquarters of the USAFIP North Luzon, Camp Spencer and the Affidavit for Philippine Army Personnel reflect that the claimant had guerilla service prior to July 1, 1946. These documents contain needed information as to length, time, and character of service. However, these documents, along with the other documents that the claimant and appellant submitted in support of the claim, such as a document entitled Commonwealth of the Philippines Payroll for Enlisted Men, do not appear to be issued by the United States service department. Moreover, even if the original copies of these documents were issued by the United States service department, as the claimant submitted these documents himself or the appellant did herself, it does not appear that these copies were issued directly by the service department. Further, it does not appear that these copies were issued by a public custodian of records who certified that they are true and exact copies of the documents in the custodian’s custody, nor does it appear that these copies were submitted by an accredited agent, attorney, or service organization representative who successfully completed VA-prescribed training on military records, and who certified that they are true and exact copies of either an original document or of a copy issued by the service department or a public custodian of records. The Board has considered whether the 2009 stamp noting authentication by V.S.P, Admin Officer III, could serve to verify these documents. However, 38 C.F.R. § 3.203(a)(1) specifically outlines the criteria for verifying evidence, and a stamp of authentication by an officer of the Armed Forces of the Philippines is not listed among these criteria. Therefore, as the documents submitted by the claimant and the appellant do not meet the criteria of 38 C.F.R. § 3.203(a)(1), the Board concludes that these documents are not sufficient to establish the claimant’s guerilla service prior to July 1, 1946. As such, 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 Filipino Veterans Equity Compensation Fund. The claimant’s service must be, therefore, obtained from the service department. See 38 C.F.R. § 3.203(c). The RO attempted to confirm the claimant’s service. Information requests were sent to the service department and a negative response on February 26, 2016 was received. A February 2017 response from the NPRC stated that it was able to identify responsive records supporting the Army’s previous negative service determination. The NPRC reported that it did a search of the Special Order (S.O.) #270 (dated November 14, 1945), and although the claimant’s name appears on the Special Order, it is insufficient evidence to determine if the listing pertains to the claimant, and if the claimant showed up for service on that day. The NPRC further stated that Completion of an Affidavit for Philippine Army Personnel, PA AGO Form 23 does not establish facts pertaining to claimed service; that service must be authenticated from the official archives which were recovered from the Philippines after World War II. The NPRC further stated that, under guidance established by the Department of the Army for post War recognition, the NPRC is not able to accept the Certification from General Headquarters Armed Forces of the Philippines or any individual affidavits to verify service. Service department findings are binding on VA such that VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The NPRC, as the duly delegated authority under the 2016 MOA, has certified that the claimant had no qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. 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). The record does not reflect that the claimant had qualifying service. On that basis, the claimant does not meet the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. As such, the Board finds that the preponderance of the evidence is against the appellant’s claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). While the Board is sympathetic to the appellant's contentions, they are outweighed by the legal provisions. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.