Alberto Q. Palor v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 04-0555

ALBERTO Q. PALOR , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided May 11, 2007 )

Kathy A. Lieberman, of Washington, D.C., for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Brian

B. Rippel, Deputy Assistant General Counsel, and John D. McNamee, all of Washington, D.C., were

on the brief for the appellee.

Before KASOLD, MOORMAN, and DAVIS, Judges.

MOORMAN, Judge, filed the opinion of the Court. KASOLD, Judge, filed an opinion

concurring in judgment.

MOORMAN, Judge: The represented appellant, Alberto Q. Palor, appeals a November 24,

2003, Board of Veterans' Appeals (Board) decision that denied his claim for entitlement to basic

eligibility for VA benefits. Record (R.) at 1-7. This appeal is timely and the Court has jurisdiction

pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons set forth below, the Court will

affirm the Board's November 2003 decision.

I. FACTS

In March 2001, Mr. Palor filed an application seeking VA disability compensation for a

peptic ulcer, a wound on the right foot, and a prostate condition. R. at 36. In support of his claims,

Mr. Palor submitted notices and affidavits from the Republic of Philippines Department of National

Defense Military Service Board, Department of National Defense Philippine Veterans Affairs Office,

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and friends regarding his military service and asserting that he had recognized guerrilla service in

the Republic of the Philippines from January 1942 to November 1943. R. at 14, 18, 20-33, 36. In

September 2001, VA requested verification of Mr. Palor's service from the National Personnel

Records Center (NPRC).

In October 2001, VA sent Mr. Palor a letter regarding his claims for service connection. R.

at 48. The letter informed Mr. Palor of the elements for establishing service connection: (1) "[A]n

injury in military service or a disease that began in or was made worse during military service, or an

event in service causing injury or disease;" (2) "a current physical or mental disability;" and (3) "a

relationship between your current disability and an injury, disease or event in service." Under the

section entitled "What Has Been Done to Help With your Claim?" VA informed Mr. Palor that a

"request [was] sent to the Department of the Army for a verification of your service medical records.

It usually takes six (6) months for them to reply." R. at 50. The letter did not contain any

information regarding the requirement of establishing veteran status. R. at 48-51.

In April 2002, the NPRC responded to VA's request and reported that Mr. Palor "has no

service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in

the service of the United States Armed Forces." R. at 75. In May 2002, the Manila, Republic of the

Philippines, VA regional office (RO), denied his claims on the basis that his military service could

not be verified. R. at 77. Mr. Palor appealed this decision. R. at 82. In a Statement of the Case, the

RO maintained its denial of his claims after noting that "[t]he proof of service with the Armed Forces

of the Philippines (whether as a guerilla or as a [United States Armed Forces of the Far East]

USAFFE) does not guarantee certification of service with the United States Armed Forces." R. at

101. Mr. Palor appealed to the Board and in November 2003, the decision on appeal here was

issued. R. at 1-7. The Board, after noting that "service department certifications are binding in

determinations regarding basic eligibility requirements," denied his claim as a matter of law. R. at

3.

The appellant makes one assertion of error on appeal. The appellant argues that the Board

decision should be vacated because VA failed to comply with 38 U.S.C. § 5103(a). The appellant

asserts that the RO committed prejudicial error by not informing him how he could substantiate his

claim, specifically, what information or evidence was necessary to establish veteran status. The

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Secretary asserts that the Board decision should be affirmed because VA did attempt to verify Mr.

Palor's service through NPRC and because VA is bound by the service department's response, which

indicated that the appellant did not serve in the Philippine Commonwealth Army or as a recognized

guerilla in the service of the USAFFE. For the following reasons, the Court will affirm the Board's

decision.

II. ANALYSIS

A. Veteran Status and 38 U.S.C. § 5103(a) – Generally

Pursuant to 38 U.S.C. § 5103(a), once VA receives a complete or substantially complete

application for benefits, the Secretary is required to inform the claimant of the information and

evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to obtain,

if any, and (3) that the claimant is expected to provide, if any. See 38 U.S.C. § 5103(a); Quartuccio

v. Principi, 16 Vet.App. 183, 187 (2002). The Secretary is also required to "request that the claimant

provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b)(1)

(2003); see Pelegrini v. Principi, 18 Vet.App. 112, 121 (2004). The purpose of the notice required

under statutory section 5103(a) and regulatory § 3.159(b) is to ensure that VA "provides affirmative

notification to the claimant prior to the initial decision in the case as to the evidence that is needed

and who shall be responsible for providing it." Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed.

Cir. 2006); see Pelegrini, 18 Vet.App. at 120 (holding that notice must be provided "before an initial

unfavorable [adjudicative] decision on the claim"). Furthermore, "[i]f the claimant's application

suggests that there is specific information or evidence necessary to resolve an issue relating to

elements of a claim," VA must tailor the notice to the claimant, thus informing him of the specific

evidence and information required to substantiate that element of the claim. See Dingess v.

Nicholson, 19 Vet.App. 473, 490 (2006) (consolidated with Hartman v. Nicholson, No. 02-1506,

aff'd in part sub nom. Hartman v. Nicholson, No. 06-7303 (Fed. Cir. Apr. 5, 2007)), appeal

docketed, Dingess v. Nicholson, No. 06-7247 (Fed. Cir. June 21, 2006). This requirement extends

to the essential element of the claim at issue in this case: establishing veteran status. Id. at 485

(holding that establishing veteran status "is necessary to substantiate service connection, and thus,

[VCAA] notice must be provided on how [that] element [] may be established"). Failure to comply

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with any of these requirements may constitute remandable error when such error is prejudicial to the

appellant. Pelegrini, 18 Vet.App. at 121-22; Quartuccio, 16 Vet.App. at 188. In the event the Court

finds error, it must "take due account of the rule of prejudicial error." 38 U.S.C. § 7261; see Conway

v. Principi, 353 F.3d. 1369, 1373 (Fed. Cir. 2004); Overton v. Nicholson, 20 Vet.App. 427, 435

(2006).

B. Proof of Philippine Veteran Status

Pursuant to 38 U.S.C. § 101(2), a "veteran" is a "person who served in the active military,

naval, or air service, and who is discharged therefrom under conditions other than dishonorable."

See 38 C.F.R. § 3.1(d)(2006). In certain circumstances, this "service" may include service in the

Commonwealth Army of the Philippines, including that service claimed by the appellant, service in

the organized guerilla forces that were called into service of the U.S. Armed Forces. See 38 U.S.C.

§ 101(2); 38 C.F.R. § 3.40. To establish this service, the Department of Veterans Affairs has

promulgated two regulations concerning the type of evidence that may be relied upon: 38 C.F.R.

§ 3.203, addressing generally "service records as evidence of service and character of discharge," and

38 C.F.R. § 3.41, specifically addressing establishing veteran status for Philippine service.

Regarding service records, 38 C.F.R. § 3.203 provides:

(A) Evidence submitted by a claimant. For the purpose of establishing entitlement

to pension, compensation, [DIC] or burial benefits [VA] 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

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(3) In the opinion of [VA] 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),

[VA] shall request verification of service from the service department. . . .

As to Philippine claimants, § 3.41 provides:

(a) For a Regular Philippine Scout or a member of one of the regular

components of the Philippine Commonwealth Army while serving with Armed

Forces of United States, the period of active service will be from the date certified

by the Armed Forces as the date of enlistment or date of report for active duty,

whichever is later to date of release from active duty, discharge, death, or in the case

of a member for the Philippine Commonwealth Army June 30, 1946, whichever was

earlier. . . .

(b) Active service of a Regular Philippine Scout or a member of the

Philippine Commonwealth Army serving with the Armed Forces of the United States

will include a prisoner-of-war status immediately following a period of active duty,

or a period of recognized guerilla service or unrecognized service under a recognized

commissioned officer. In those cases where following release from active duty as set

forth in paragraph (a) of this section, the veteran is factually found by [VA] to have

been injured or killed by the Japanese because of anti-Japanese activities or his or her

former service in the Armed Forces of the United States, such injury or death may be

held to have been incurred in active service for [VA] purposes. Determination shall

be based on all available evidence, including service department reports and

consideration shall be given to the character and length of the veteran's former active

service in the Armed Forces of the United States.

(c) A prisoner-of-war status based upon arrest during general zonification will

not be sufficient of itself to bring a case within the definition of return to military

control.

(d) The active service of members of the irregular forces guerilla will be the

period certified by the service department.

With regard to Philippine claimants claiming service in the Philippine Commonwealth Army

and attempting to establish veteran status, the U.S. Court of Appeals for the Federal Circuit (Federal

Circuit) analyzed the relationship between § 3.203 and § 3.41 and held that "these regulations require

that an applicant prove his service in the Philippine Commonwealth Army with either official

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documentation issued by a United States service department, or verification of the claimed service

by such a department." Soria v. Brown, 118 F.3d 747, 748 (Fed. Cir. 1997) (citing § 3.9

(redesignated as § 3.41 (2001)) for the proposition that veteran status for Philippine veterans is

authorized "from the date certified by the Armed Forces [of the United States], § 3.203(a) for the

proposition that "service department documentation of service" is required where available, and

§ 3.203(c) for the proposition that service department verification of service is required where

documentation is not available). Thus, in accordance with the Federal Circuit's determination in

Soria, Philippine claimants are not limited solely to NPRC's verification as a means of proving

veteran status. They may also submit official evidence from the U.S. service department that verifies

their service. 38 C.F.R. § 3.203(a), (c); cf. Soria, 118 F.3d. at 749. The Federal Circuit ultimately

concluded:

Philippine veterans are not eligible for veterans' benefits unless a United States

service department documents or certifies their service.

Where service department certification is required, the VA has long treated

the service department's decision on such matters as conclusive and binding on the

VA. Thus, if the United States service department refuses to verify the applicant's

claimed service, the applicant's only recourse lies within the relevant service

department, not the VA. This court sees no error in that treatment.

Soria, 118 F.3d at 749 (citations omitted) (holding no error in Board decision where Board refused

to consider claim for veteran's benefits because the United States Department of the Army refused

to certify his service in the Philippine Commonwealth Army). Thus, it appears that pursuant to the

Federal Circuit's decision in Soria, VA may accept U.S. service department documents or seek

certification of service, but once certification is received, VA is bound by that certification. Id.

C. Notice Requirements Following Soria and the Enactment of the VCAA

The Federal Circuit's decision in Soria predates the VCAA, and thus, the Federal Circuit did

not address VA's notice obligations concerning proof of veteran status when it considered the

interplay between § 3.203 and § 3.41. In light of the Court's holding in Dingess, we conclude that

VA was obligated to inform the appellant of the information or evidence necessary to prove the

element of veteran status, what information the veteran was responsible for providing, and what

information VA would seek to obtain concerning that element. See Dingess, 19 Vet.App. at 485;

see also Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (noting that section 5103(a) does not

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require a "pre-decisional decision" on the evidence, but it does require that "some cognitive review

of the claim must be made prior to providing the notice and that a generalized or boilerplate notice

letter might not suffice in some cases"). 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.1 Given that the issue of whether VCAA-compliant

notice was provided is a "substantially factual determination . . . that should . . . [be] made by [VA]

in the first instance," the Court will now address whether the Board's decision in this regard was

clearly erroneous. See Mayfield, 444 F.3d at 1333-34.

D. Compliance with 38 U.S.C. § 5103(a)

In this case, the Board addressed both § 3.41 and § 3.203(c) and determined, based on the

appellant's service in the guerilla forces, that "VA may accept evidence of service . . without

verification from the appropriate service department if the evidence meets the following conditions:

(1) [T]he 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 VA, the

document is genuine and the information contained in it is accurate." R. at 4. The Board then

determined that the documents and affidavits submitted by the appellant in support of his claim did

not meet the requirements of 38 C.F.R. §3.203, "as none [were] issued by the service department."

R. at 6. The Board noted that it had relied on the same reasoning provided by the RO in the

Statement of the Case, that because "[NPRC] had certified that [the appellant] had no recognized

military service and that this determination [is] binding on VA . . . this claim is being denied as a

matter of law." Id.

The question remains, however, whether the notice provided to the appellant pursuant to

38 U.S.C. § 5103(a) was properly tailored, adequately informing the appellant of his opportunity

1

The Court notes that in regard to a separate application for benefits, and prior to the

enactment of the VCAA, VA did in fact inform the appellant that establishing veteran status was at

issue in his attempt to establish entitlement to VA benefits. That notice, dated June 2000, informed

the appellant that he needed to submit "a military discharge certificate or other acceptable evidence

of military service on which your claim is based. You may request proof of service from the

Philippine Veterans Affairs Office or at the Noncurrent Records Branch, Office of the Adjutant

General, GHQ, in Camp Aguinaldo, Quezon City." R. at 17.

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to submit evidence pursuant to § 3.203 to establish veteran status, and if not, whether such error was

prejudicial. Although the Board recognized the existence of the requirements of both § 3.203 and

§ 3.41, it did not specifically discuss whether the RO provided the appellant notice of the opportunity

to submit official U.S. documentation of service as evidence, permitted by Soria, to establish veteran

status. Rather, the Board, in addressing VA's compliance with 38 U.S.C. § 5103(a) and 38 C.F.R.

§ 3.159(b), determined that "the appellant was notified of the evidence necessary to substantiate his

claim by correspondence dated in October 2001 (prior to adjudication)." R. at 3. This finding is

clearly erroneous. See Mayfield, 444 F.3d at 1333-34. The October 2001 letter did not provide the

appellant notice of the information and evidence necessary to substantiate his claim, nor did it inform

him of any information or evidence concerning veteran status that VA would seek to obtain on his

behalf, nor of any evidence and information that he was expected to provide. The October 2001

letter informed the appellant only that VA had requested verification of his "service medical

records" from the Department of the Army. The letter did not inform him of the requirements of

38 C.F.R. § 3.203(a)(c), or § 3.41, that is, that he could have submitted evidence, in the form of U.S.

service documentation, supporting his veteran status, nor did it inform him that the U.S. service

department certifications that Philippine service either qualifies or does not qualify him for veteran

status may be binding on his claim. Although VA had received the appellant's letters from the

Republic of the Philippines Department of National Defense Military Service Board, Department

of National Defense Philippine Veterans Affairs Office, and affidavits from his friends describing

their military experiences together, and thus clearly was aware that veteran status would be an issue

in his claim, the October 2001 letter did not provide him with information as to what documents, if

any, he could submit that would constitute acceptable evidence of qualifying military service. As

a result, the notice provided to the appellant failed to satisfy all of the requirements set forth in

38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Having found error with the Board's determination,

the Court must "take due account of the rule of prejudicial error." 38 U.S.C. § 7261(b)(2); see

Conway v. Principi, 353 F.3d 1369, 1374-75 (Fed. Cir. 2004); Overton, 20 Vet.App. at 435.

E. Prejudicial Error

The Federal Circuit's decision in Soria recognizes that service department certifications that

Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive

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and binding on VA. Therefore, in assessing whether the appellant was prejudiced by VA's failure

to notify him of the various methods available for proving Philippine veteran status, the Court can

conclude only that because the appellant is currently ineligible for VA benefits as a matter of law

based on the NPRC's refusal to certify the appellant's service, he was not prejudiced by the section

5103(a) notice error. See Valiao v. Principi, 17 Vet.App. 229, 232 (2003) (determining that VCAA

notice error was nonprejudicial where appellant was not entitled to benefit as a matter of law). This

is so because based on the U.S. service department's refusal to certify, there are presumably no

documents issued by the U.S. service department that the appellant could submit to VA that would

show qualifying service under §3.203. Furthermore, the appellant has not asserted that he has any

evidence that would meet the requirements of 38 C.F.R. § 3.203, documentation of service from a

U.S. service department; rather, he alleges only that additional evidence "could exist" that would

warrant a further request to the service department. See Appellant's Brief at 13-14 (recognizing that

different identification data could prompt VA to seek recertification, but failing to assert, with any

degree of specificity, that the information submitted for the certification request was erroneous, and

also failing to assert with any specificity that he has evidence in his possession that would meet the

requirements of § 3.203); see also Sarmiento v. Brown, 7 Vet.App. 80, 86 (1994)(remanding where

veteran asserted that VA sought certification of his service with erroneous spelling of his first name),

overruled on other grounds by D'Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000). Thus, given

the binding nature of the U.S. service department's certification in this instance, a remand for further

development could not possibly change the outcome of the decision. See Valiao, 17 Vet.App. at 232.

The appellant's only remaining recourse, as noted by the Federal Circuit in Soria, supra, is

to submit any documentation of qualifying U.S. service he may possess to the appropriate service

department for certification of his service. 118 F.3d at 749. If his service eventually is certified, the

appellant may seek to reopen his claim for service connection based on his submission of new and

material evidence – the service department's certification. See 38 U.S.C. § 5108; 38 C.F.R.

§ 3.156(c) (2006)2. Thus, although VA should have informed the appellant that veteran status could

2

This provision allows for the assignment of an effective date on the date VA received the

previously decided claim in cases in which VA reconsiders that claim because it "receive[d] or

associate[d] with the claims file relevant official service department records that existed and had not

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be substantiated in either of the two ways specified in VA regulations, because the service

department has refused certification, such error does not warrant a remand in this case where the

appellant has not shown that a remand would alter the result. See Valiao, 17 Vet.App. at 232.

III. CONCLUSION

Based on the foregoing analysis, the appellant's and the Secretary's briefs, and a review of

the record on appeal, the Board's November 24, 2003, decision is AFFIRMED.

KASOLD, Judge, concurring in judgment: Although I agree with the disposition in this case,

I respectfully dissent from that part of the majority opinion that finds that the Secretary violated

38 U.S.C. § 5103(a).

Pursuant to regulation, the "active service of members of the irregular force guerilla will be

the period certified by the service department." 38 C.F.R. § 3.41(d) (2006) (latter emphasis added).

Thus, when Mr. Palor submitted his application for VA benefits and asserted that he had recognized

guerrilla service in the Republic of the Philippines from January 1942 to November 1943 and

provided documentation supporting his assertion,3 the Secretary had sufficient information to seek

certification of the reported service from the NPRC. In response thereto, the NPRC reported that

Mr. Palor "has no service as a member of the Philippine Commonwealth Army, including the

recognized guerillas, in the service of the United States Armed Forces." R. at 75. Thereafter, the

Secretary properly denied Mr. Palor's claim. See Soria, 118 F.3d at 749 ("Where service department

certification is required, . . . the VA has long treated the service department's decision on such

matters as conclusive and binding on the VA. . . . This court sees no error in that treatment.").

been associated with the claims file when VA first decided the claim." 38 C.F.R. § 3.156(c).

3

In support of his assertion, Mr. Palor submitted with his application for VA benefits

affidavits from the Republic of Philippines Department of National Defense Military Service Board,

Department of National Defense Philippine Veterans Affairs Office, and friends regarding his

military service and asserting that he had recognized guerrilla service in the Republic of the

Philippines.

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Although section 5103(a) requires the Secretary to notify a claimant of the information and

evidence necessary to substantiate a claim, it should not be read to require futile efforts as is the case

here, where the information necessary to seek certification of service from NPRC is provided with

the application for VA benefits and the law is dispositive and mandates denial of the claim when that

service is not so certified. See Ala. Power Co. v. Costle, 636 F.2d 323, 360 (D.C. Cir. 1980) (stating

the obvious proposition that courts should be reluctant to interpret the terms of a statute "to mandate

pointless expenditures of effort"); Mason v. Principi, 16 Vet.App. 129, 132 (2002) ("[B]ecause the

law as mandated by statute, and not the evidence, is dispositive of this claim, the VCAA is not

applicable."); Sabonis v. Brown, 6 Vet.App. 426, 430 (1994) (where law, and not evidence, is

dispositive, claim should be denied or appeal terminated because of lack of legal merit).

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