Citation Nr: 1320087	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  11-15 980	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

K. Gielow, Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 and June 2010 administrative decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC).

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).

In January 2010, the appellant submitted a claim for pension.  Subsequently, in August 2010, the appellant submitted a VA Form 21-526 (Veteran's Application for Compensation and/or Pension).  However, these claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ), and the Board does not have jurisdiction over them.  These claims are therefore referred to the AOJ for appropriate action.  

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

Although the Board regrets any further delay, a remand is necessary for additional development.

VA may accept documents submitted by a claimant as evidence of qualifying service, without verification from the appropriate service department, if the documents were issued by a U.S. service department, contain the needed information, and in VA's opinion are genuine and contain accurate information. 38 C.F.R. § 3.203(a); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997) (addressing verification of service in the Philippine Commonwealth Army while in the service of the U.S. Armed Forces).  However, as is the case here, if the evidence of service submitted does not meet the requirements of § 3.203(a), VA must request verification of service from the appropriate U.S. service department.  38 C.F.R. § 3.203(c); see Soria, 118 F.3d at 749 (rejecting the appellant's argument that it was error not to accept the Philippine Department of National Defense's certification of veteran status as proof of status). 

Significantly, where the service department has made a negative determination, but the claimant subsequently provides VA with new information relevant to qualifying service, VA generally must submit the new evidence to the service department for further review.  Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008).  The U.S. Court of Appeals for Veterans Claims also stated that, in Sarmiento v. Brown, 7 Vet. App. 80 (1994), overruled on other grounds by D'Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000), it was determined that "there is no stated limit on the number of times that the Secretary 'shall' request service department verification when one claiming entitlement fails to submit qualifying evidence of service."

In this case, the RO requested a search for the appellant's military records from the National Personnel Records Center (NPRC) in Missouri on two occasions.  In May 2008, NPRC responded that it could not verify the appellant's guerrilla service with the "K" Company, 3rd Battalion, 14th Infantry from May 28, 1945 to February 16, 1946.  Subsequently, in February 2011, NPRC looked also at guerilla service in "B" Company, 1st Battalion, 22nd Infantry, as well as "F" Company, "Repl & Cas" Battalion, for the dates of May 28, 1945, to February 16, 1946, and from June 1, 1945 and February 14, 1947.  NPRC again determined that it could not verify any qualifying service.

After carefully reviewing the claims file, the Board determines that the appellant has submitted additional information that requires another request be made to NPRC.  Specifically, he has submitted statements and evidence suggesting alternate dates of service within "B," "F," and "K" Companies:

* Service in "K" Company, 3rd Battalion, 14th Infantry, from June 1945 to November 1945.
* Service in "K" Company, 3rd Battalion, 14th Infantry, from November 15, 1945, to February 15, 1946.
* Service in "K" Company, 3rd Battalion, 14th Infantry, from May 26, 1945, to February 21, 1946.
* Service in "K" Company, 3rd Battalion, 14th Infantry, from November 15, 1945, to February 21, 1946.
* Service in "K" Company, 3rd Battalion, 14th Infantry, from November 15, 1945, to February 21, 1947.
* Service in "K" Company, 3rd Battalion, 14th Infantry, from May 28, 1945, to February 21, 1947.
* Service in "B" Company, 1st Battalion, 22nd Infantry, from November 15, 1945, to February 21, 1947.
* Service in "B" Company, 1st Battalion, 22nd Infantry, from May 28, 1945, to February 16, 1946.
* Service in "F" Company, "Repl & Cas" Battalion, from June 1, 1945, to February 14, 1947.

As provided by the Court in Capellan, "38 C.F.R. § 3.203 requires that [the appellant's] military service be determined based on all relevant evidence, with due application of the duty to assist, 38 U.S.C. § 5103A; 38 C.F.R. § 3.159, and the statutory and regulatory requirements to consider 'all information and lay ... evidence of record.'"  Accordingly, the Board must remand to obtain NPRC review of the subsequent evidence showing alternate dates of service.

Accordingly, the case is REMANDED 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) (2012).  Expedited handling is requested.)

1. Contact the NPRC, or other appropriate entity, and request verification of the appellant's service.  The evidence submitted to the NPRC, or other appropriate entity, should include the following:

* Service in "K" Company, 3rd Battalion, 14th Infantry, from June 1945 to November 1945; from November 15, 1945, to February 15, 1946; from May 26, 1945, to February 21, 1946; from November 15, 1945, to February 21, 1946; from November 15, 1945, to February 21, 1947; or from May 28, 1945, to February 21, 1947.
* Service in "B" Company, 1st Battalion, 22nd Infantry, from November 15, 1945, to February 21, 1947; or from May 28, 1945, to February 16, 1946.
* Service in "F" Company, "Repl & Cas" Battalion, from June 1, 1945, to February 14, 1947.

2. Thereafter, readjudicate the claim.  If the benefit sought on appeal remains denied, the appellant should be furnished a supplemental statement of the case and be provided with an appropriate period of time to respond.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  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. 2012).



_________________________________________________
WAYNE M. BRAEUER
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).