Citation Nr: 1323407 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 11-34 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the Appellant is a Veteran for the purpose of establishing entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Appellant avers that he is a guerrilla Veteran of World War II. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2010 decision in which the RO found that the Appellant was not a Veteran for the purpose of obtaining a one-time payment to the FVEC Fund. The Appellant timely appealed the issue. The Appellant's Virtual VA paperless claims file has been reviewed in preparing this remand, along with his paper claims file. 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 Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim can be properly adjudicated. Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim can be properly adjudicated. The Appellant seeks entitlement to the one-time payment from the FVEC Fund. This issue involves the critical legal criteria of requiring evidence establishing that the Appellant is a "Veteran" for VA purposes. This determination rests on the nature of his military service. The Appellant contends that he served with a unit that should be recognized as establishing legal entitlement to the one-time payment from the FVEC Fund. The term "Veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2012). A one-time benefit is provided for certain Philippine Veterans to be paid from the FVEC Fund. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Section 1002(d) provides that an eligible person is any person who: (1) served (A) before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States; or (B) in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ); and, (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable. Id. Here, in November 2010, July 2011, and March 2013 (in response to RO requests), the National Personnel Records Center (NPRC) reported that the Appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. In all of the requests to NPRC, the RO listed the Appellant's last name as "Amodente." In his December 2011 Substantive Appeal (on VA Form 9), the Appellant argued that his brother was recently granted a FVEC Fund award under the last name of "Amidiente" as opposed to "Amodente." The Appellant also submitted affidavits, which stated that the Appellant's brother goes by both variations of the last name. The Appellant argued that his claim for a FVEC Fund should also be granted under the alternate last name of "Amidiente." To date, a request has not been sent to the NPRC to verify the Appellant's military service under the last name of "Amidiente." Thus, the Board finds that a new request needs to be sent to the NPRC on remand, before the Appellant's claim can be decided on the merits. See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (indicating that, 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). 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. Using the names of "Primitivo Poblete Amidiente," "Primitivo Amidiente," and "Primitivo P. Amidiente," ask the NPRC to determine whether the Appellant had service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Provide the NPRC with copies of any relevant records in the claims file in connection with this request. The response from the NPRC must be associated with the claims file. 2. After the above action has been completed, readjudicate the Appellant's claim. If the claim remains denied, issue to the Appellant a Supplemental Statement of the Case (SSOC). Afford him the appropriate period of time within which to respond thereto. 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 or by the United States Court of Appeals for (CONTINUED ON THE NEXT PAGE) 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). _________________________________________________ K. GIELOW 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) (2012).