           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

                                                  6
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


                                                  8
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

                                                   9
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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