Citation Nr: 1314342 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 11-26 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to Department of Veterans Affairs nonservice-connected pension benefits. ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant was on active duty in the New Philippine Scouts from May 1946 to February 1949. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a letter decision issued in September 2010, by the Department of Veterans Affairs (VA), Regional Office, in Manila, the Republic of the Philippines, that, in pertinent part, determined that the appellant was not eligible for VA nonservice-connected pension benefits. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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 In February 2009, the appellant was awarded a nonservice-connected pension. The effective date of that award was determined to be September 1, 2008. The Honolulu Regional Office awarded the appellant nonservice-connected pension benefits based upon a "Certification of Military Service" document that indicated that the appellant served in the United States Army from May 15, 1946, to February 9, 1949, and who was honorably discharged as a private. The appellant's service had been "verified" by the National Personnel Records Center (NPRC) when it responded with a certificate of verification of service: The record needed to respond to your request is fire-related. No separation documents are available from which to verify active duty dates and COD. The information furnished below was obtained from alternate records sources. Veteran served from 05/15/1946 to 02/09/1949, COD: HON, Service Number [redacted]. Approximately three months later, the appellant applied for a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. On that form, the appellant provided his service number and his dates of service. This application was sent to the Manila RO for processing. Upon receipt of the application, the Manila RO sought verification from NPRC concerning the appellant's service. NPRC forwarded to the Manila RO the response that had been provided above to the Honolulu RO. Subsequently, the appellant was awarded FVEC benefits as a United States citizen. Upon further review of the appellant's file, the Manila RO made a determination that the appellant did not serve in the United States Army but instead served in the Special Philippine Scouts from May 15, 1946, to February 9, 1949. Because the appellant served with the Special Philippine Scouts, his service was not, by law, deemed to have been active military service with the Armed Forces of the United States for the purpose of establishing entitlement to a nonservice-connected disability pension. As such, the RO further concluded that an administrative error had been committed by the VA and, as such, the appellant's nonservice-connected pension was terminated. The appellant, however, was not penalized by having to repay the amount paid to him by VA due to the VA administrative error. The appellant was notified of the RO's action to discontinue payments in a letter sent to him in September 2010. In a response to that letter, the appellant submitted a notice of disagreement in which he expressed disagreement with the RO's action. More specifically, the appellant stated that he had been a Private in the "H & H Service Company", of the 544th Engineer Construction Battalion, and that he was discharged from service out of Naha, Okinawa (American Occupation Zone). The Board notes that this was the first time that the appellant provided specific information with respect to the unit he purportedly served with during World War II and the interregnum. A further review of the claims folder reveals that since that information was provided by the appellant, the VA has not contacted NPRC to seek re-verification of the appellant's service based upon this new evidence. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) that, in the context of a Dependency and Indemnity Compensation claim, where service department certification of an appellant's active service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department. The Federal Circuit further held in Capellan that it was a violation of VA's duty to assist not to request service department review of additional or new documents or evidence provided by an appellant concerning an appellant's active service after the initial service department certification. See Capellan, 539 F.3d at 1380-81. The Federal Circuit further noted that "the correct interpretation of the governing statues and regulations requires that a claimant's new evidence be submitted and considered in connection with a request for 'verification of service from the service department' pursuant to 38 C.F.R. § 3.203(c)." Id. Therefore, in accordance with the holding in Capellan in light of the appellant's submission of additional evidence concerning this service subsequent to the NPRC's most recent certification of service, a new recertification of service is needed. As such, the claim will be returned to the RO for additional action. Additionally, the appellant has indicated that he wishes to be represented in his appeal by a Mr. Arnold C. Baxa, of Wailuku, Hawaii. In response to the appellant's assertions, the Manila RO sent a VA Form 21-22a, Appointment of Individual as Claimant's Representative, to the appellant. The address that was used on the letter to the appellant was PO Box 1530, Kahului, Hawaii 96733. The letter was returned as nondeliverable. A further review of the appellant's claims folder indicates that letters and notifications have been sent to at least four addresses of the appellant. Some of the letters have been returned and some have not. Pursuant to regulation, the appellant has a right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person. See 38 C.F.R. § 20.600 (2012). This representation includes giving the appointed representative an opportunity to submit argument in support of the claim on appeal. In this case, it is unclear whether the appellant has been given the opportunity to appoint an authorized individual to represent him and if he understands that merely naming someone in a letter does not constitute an appointment. Moreover, if the appellant has appointed a representative, that representative must be given an opportunity to offer written argument on the appellant's behalf, and this argument must be considered by the RO prior to the claim being returned to the Board for appellant review. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the appropriate agency/service department and make a new request for verification of the appellant's service including, but not limited to, any recognizable service from 1941 to 1945, and service from 1946 to 1949. The RO should provide to the appropriate agency/service department the name of the appellant's purported unit and his lay statement that he was discharged from service in Okinawa, along with any other relevant records from the claims file. Of particular interest is whether the appellant was a private in the "H & H Service Company", of the 544th Engineer Construction Battalion, and that he was discharged from service out of Naha, Okinawa (American Occupation Zone). All responses received from the service department or agency should be included in the claims folder for review. 2. After receipt of the reply from NPRC, and after any other development indicated by the state of the record, the RO should solicit a completed VA Form 21-22 from the appellant and if an accredited representative is selected, a VA Form 646, or equivalent, from the claimant's agent/representative prior to recertifying the appeal to the Board. The agent/representative should be offered the opportunity to review the claims folder. If the benefit sought on appeal is not granted, the RO should issue an appropriate supplemental statement of the case and provide the appellant an opportunity to respond. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. Thereafter, the case should be returned to the Board for further appellate consideration. No action is required of the appellant until or unless he is contacted by the RO. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. 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. 2012). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals 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) (2012).