Citation Nr: 1339611 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 02-19 982A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been received to reopen a claim to establish basic eligibility for Department of Veterans Affairs (VA) death benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant's deceased spouse is claimed to have had active service during World War II. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a January 2002 determination by the Manila Regional Office (RO), which determined that new and material evidence had not been received to reopen the appellant's claim for VA death benefits because the evidence failed to show that her deceased husband had the requisite service to establish basic eligibility. In May 2003, a Travel Board hearing was held before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is associated with the record. A December 2003 Board decision, the denied the appellant's claim. She appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2006, the Court set aside the Board's decision and remanded the matter to the Board for readjudication. In November 2006, the Board remanded the case to the RO for additional development. An October 2007 Board decision again denied the issue on appeal, and the appellant appealed the decision to the Court, which resulted in a February 2009 Joint Motion to Vacate and Remand by the parties (Joint Motion). By a February 2009 Order, the Court vacated the October 2007 Board decision and remanded the matter to the Board for readjudication consistent with the Joint Motion. The appellant did not respond to a May 2009 Board letter offering her another hearing (before a Veterans Law Judge who would decide her appeal. She did not respond, and it is assumed that she does not want another hearing. The case was reassigned to the undersigned. In September 2009, it was remanded for additional development. 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 in Washington, DC. VA will notify the appellant if further action is required. REMAND As noted in the September 2009 Board remand, the appellant claims that her deceased spouse had qualifying active service, including with the United States Army and the recognized guerrillas, and thus was entitled to VA benefits as a veteran. Previously, the National Personnel Records Center (NPRC) had advised VA on multiple occasions that the appellant's spouse had no service that could be considered service in the United States Armed Forces. The Board in September 2009 directed the RO to seek re-verification from the NPRC of the alleged military service of the deceased spouse of the appellant, using various documents from a particular guerrilla force, among other evidence added to the file, that had not previously been considered. The RO sent the appellant's information to the NPRC for verification in March 2010, May 2010, October 2011, and March 2012. Interestingly, on the latter two request forms, the RO notified the NPRC that the name of the appellant's deceased spouse was listed in page 56, file #85 of the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by the Manila RO. The NPRC's response in June 2012 is ambiguous. It notes that two individuals sharing the same first and last names as the appellant's spouse, but with a different middle initial, appeared to be one and the same person. It listed to two different forms ("632" and "GSXRP Fm 9"). Then, it stated that its re-determination superceded all prior negative determinations. The RO in an August 2013 supplemental statement of the case (SSOC) interpreted this response as unfavorable to the claim. If that is so, it is not clear why the RO did not accept the presence of the name of the appellant's spouse on the Reconstructed Recognized Guerrilla Roster (RRGR) as evidence of qualifying service. As for the cited 632 form, this appears to be in reference to ARCEN Form 632, a copy of which was received from the NPRC and which indicates the appellant's spouse had participated in unrecognized anti-Japanese activities and had no guerrilla service. This form is dated in October 1958 (decades before the appellant's spouse's name was found to be listed on the RRGR). As for the cited GSXRP form, this appears to be in reference to an application for arrears in pay and quarters allowances, which was filed by the appellant as a surviving spouse in September 1946. The NPRC's response did not contain specific comment as to whether the appellant's spouse had any service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. In contrast, the appellant in September 2009 and July 2013 submitted a copy of a letter, dated in November 2008, that she had received from the NPRC in regard to her inquiry claiming military service for her deceased spouse. In the letter, the NPRC notified her that records showed her spouse had served as a member of the Philippine Commonwealth Army, which included USAFFE service, in the service of the Armed Forces of the United States from September 1, 1941 to the time of his death in February 1945, but that this service was "not considered as active service in the United States Army." There was no comment as to whether the appellant's spouse was a recognized guerrilla in the service of the United States Armed Forces. It is regrettable to prolong this matter to more fully develop the claim, but it is necessary that the RO request the NPRC to clarify the discrepancies and uncertainties regarding the alleged military service of the appellant's deceased spouse. Accordingly, the case is REMANDED for the following: (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. Request the Service Department/NPRC to re-verify the alleged service/or nonservice of the deceased spouse of the appellant, using all of the prior information provided by the appellant. The response should clearly address whether the appellant's spouse had service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. In its consideration, the NPRC should note the presence of the name of the appellant's deceased spouse on the Reconstructed Recognized Guerrilla Roster, and determine whether such was evidence of qualifying service. 2. Thereafter, readjudicate the issue on appeal on the basis of all of the evidence of record and all governing legal authority. If the claim remains denied, issue an appropriate SSOC, and afford the appellant the opportunity to respond before the record is returned to the Board. 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 Court 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). _________________________________________________ George R. Senyk 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 the appellant's appeal. 38 C.F.R. § 20.1100(b) (2013).