Citation Nr: 1331435 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 11-33 573 ) 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 (FVEC) Fund. WITNESSES AT HEARING ON APPEAL Appellant, spouse ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The appellant contends that he served in the Philippine Commonwealth Army, to include recognized guerrilla service, in the service of the United States Armed Forces, from February 1943 to September 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In August 2011, the appellant and his spouse provided testimony before a Decision Review Officer at the RO. In August 2013, the appellant testified at a Board hearing. A transcript of each hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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 appellant seeks a one-time payment from the FVEC Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002. Section 1002(d) provides that a person is eligible for the payment if he or she had qualifying service, defined as service 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; and was discharged or released from service under conditions other than dishonorable. In order to be eligible for benefits administered by the VA, the evidence must establish that the individual seeking benefits is a veteran. The term "veteran" is defined in 38 U.S.C.A. § 101(2) as a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, 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 under the following conditions: (1) the evidence is a document issued by the service department; (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. See 38 C.F.R. § 3.203(a) (2013). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a), VA is required to request verification of service from the service department. 38 C.F.R. § 3.203(c). Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and the VA has no authority to amend or change their decision. Findings by a United States service department verifying or denying a person's service are binding and conclusive upon the VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). VA has attempted to verify the appellant's service with the National Personnel Records Center (NPRC) multiple times and has received negative responses in September 2011 and January 2013 based upon the names the Veteran provided, specifically Enrique Reyes and Eric Fournier Brodrick. During the August 2013 Board hearing, the appellant and his representative requested that an additional name, Enrique Delos-Reyes, be verified with NPRC. In Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the Federal Circuit addressed the issue of when VA's duty to assist required it to re-attempt verification of Philippine military service when new information was provided after an earlier adverse determination. The Federal Circuit held that, generally, after a service department has failed to verify service, new evidence relating to a claimant's service requires VA to again request verification. Id. at 1381. Here, the appellant submitted new identifying evidence during the Board hearing. Thus, another request for verification of service from the NPRC should be submitted. See Id. at 1381-82. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Contact the NPRC and make a new request for verification of the appellant's service. The evidence to be submitted to the NPRC should include the appellant's additional name, Enrique Delos-Reyes or Enrique Delos Reyes. 2. After receipt of NPRC's reply, and following any other indicated development, readjudicate the issue of whether the appellant has legal entitlement to a one-time payment from the FVEC Fund. If the claim remains denied, a supplemental statement of the case should be provided to the appellant and his representative. After he has had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. 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 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 2002 & Supp. 2012). _________________________________________________ JAMES L. MARCH 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) (2013).