Citation Nr: 1337622 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-48 695 ) 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. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION Please note 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). This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. In that decision, the RO denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund. In March 2012, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. The Virtual VA claims file has been reviewed. In an April 2012 decision, the Board denied the appellant's claim for appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund. The appellant subsequently appealed the Board's April 2012 decision to the United States Court of Appeals for Veterans Claims (Court), and in an August 2013 Order, the Court vacated that decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). Thus, 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 the Joint Motion, the parties agreed that the Board failed to comply with the duty to assist. The Joint Motion states that the Board erred in not ensuring that the duty to assist had been met, by sending to the NPRC all of the documents sent by the appellant in support of his claim that he had service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. Specifically, they noted that the Board had failed to remand the appellant's claim to the RO for additional verification by the National Personnel Records Center (NPRC). In accordance with the Joint Motion, the RO must send to the NPRC all potentially relevant documents in an effort to determine whether the appellant had qualifying service. These documents include, but are not limited to: a list of officers and enlisted men of "E" Co., 71st Inf. on duty with the 22d Repl. Depot APO 714, a Discharge Certificate from the Commonwealth of the Philippines Army showing service from October 1942 to February 1946, other Philippine Army service records, documents showing his service as a civilian employee with the Air Force, his United States Passport, documents showing his membership in the American Legion, affidavits attesting to his service in the Philippine Army, identification documents showing that the appellant is authorized to carry a weapon as part of the 71st Infantry, and a June 2010 letter from the Veterans Affairs Office of the Philippine Department of National Defense. In Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the Federal Circuit held (in the context of a Dependency and Indemnity Compensation claim), that 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 also held 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. Id. at 1380-81. Additionally, the Federal Circuit held 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. 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. Send all of the information provided by the appellant, including a copy his March 2012 testimony and written statements, as well as the aforementioned documents sent by the appellant in support of his claim that he had service as a recognized guerilla member of the Philippine Commonwealth Army to the National Personnel Records Center. The NPRC should attempt to determine whether the appellant had qualifying service. The NPRC is requested to confirm which documents were researched and whether the appellant had recognized service. 2. If, upon completion of the above action, the benefit sought remain denied, the case should be returned to the Board after compliance with requisite appellate procedures. 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). _________________________________________________ H. N. SCHWARTZ 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).