Citation Nr: 1032995 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 08-26 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to VA death benefits. WITNESSES AT HEARING ON APPEAL Appellant and her two daughters ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The appellant maintains that her spouse, who died in October 1990 (hereafter "decedent"), had recognized service with the United States Armed Forces during World War II. She contends that she is legally eligible for VA death benefits. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The appellant provided testimony at a July 2009 Board personal hearing before the undersigned in Manila, Republic of the Philippines. The Board remanded this case in December 2009 for further development. The Board notes that the appellant recently signed a VA Form 21- 22a, Appointment of Individual as Claimant's Representative, in favor of an individual associated with the Philippine Veterans Legion. The Philippine Veterans Legion is not a Veterans Service Organization accredited by VA to represent claimants; therefore, this organization may not represent the appellant in this appeal. It is unclear whether the individual associated with that organization is accredited in his or her own right to act as an agent, as that person's name is not legibly written. If the appellant wishes to appoint a representative in connection with this appeal, she should contact the RO in Manila for a list of accredited representatives, or otherwise sign a new VA Form 21- 22a in favor of an accredited representative. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND The decedent apparently served as a civilian employee from November 1945 to September 1948. Personnel records for him on file show he served as a "checker" with units including the Philippine Base Service Command, the 52d Transportation Medium Port Philippines Command, and United States Army Forces, Western Pacific. The appellant contends that serving as a civilian in support of those who served with the U.S. Armed Forces entitles one to VA benefits. The appellant also appears to maintain, however, that the decedent served as a Guerilla. She has submitted identity cards purporting to show he was a member of the Luzon Guerilla Force. In February 2010, she alleged that he was discharged from Guerilla service in September 1945, which would be prior to his civilian duties as a checker. In November 2007 and January 2008, the National Personnel Records Center (NPRC) certified that the decedent had no service as a member of the Philippine Commonwealth Army, including the Recognized Guerrillas, in the service of the U.S. Armed Forces. In July 2008, and apparently in response to a request by the appellant's daughter, the NPRC noted that, as regarding any civilian service of the decedent, a different branch of the NPRC had responsibility for maintaining any such records. The Board remanded the case in December 2009 for the RO to contact the service department again, in order to have the service department review documents including an October 2007 joint affidavit swearing that the decedent's date of birth had been incorrectly recorded, and photocopies of identification cards for the decedent showing a particular date of birth. In January 2010, the NPRC responded to VA's request for additional verification by noting that it had already informed the decedent's kin in July 2008 that the decedent may have served in a civilian capacity. The NPRC again noted that there was a separate branch of the NPRC which maintained records of civilian employment, and suggested that VA contact that branch instead. The Board's December 2009 remand instructions have not been complied with. The Board instructed the RO to make a new request for verification of the decedent's service through the NPRC. In its response, the NPRC did not, as believed by the RO, impliedly make a determination that the decedent had no recognized service. Rather, the NPRC mistakenly concluded that VA was only inquiring as to the decedent's civilian records. As the NPRC did not address whether, in light of the documents provided by the RO in compliance with the Board's remand, there was information showing that the decedent had the requisite service to entitle the appellant to VA death benefits, the Board must remand the case again. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, this case is REMANDED to the RO for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Contact the NPRC and make a new request for verification of the decedent's service. The NPRC should be provided with copies of all relevant evidence (including lay and documentary evidence) regarding the decedent's claimed service. The evidence to be submitted to the NPRC should include the following: (1) an October 2007 joint affidavit swearing that the decedent's date of birth had been incorrectly recorded, and that his correct date of birth was May 10, 1910, as opposed to May 15, 1910; (2) photocopies of identification cards which show a May 10, 1910 date of birth for the decedent. 2. After receipt of NPRC's reply, review the response to ensure it is in compliance with the Board's remand instructions. Then, and after any other development indicated by the state of the record (including the translation of any foreign language documents into English), readjudicate the issue of legal entitlement to VA death benefits. If the benefit sought remains denied, the appellant should be provided a supplemental statement of the case and an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).