Citation Nr: 1509903 Decision Date: 03/10/15 Archive Date: 03/17/15 DOCKET NO. 13-00 306 ) 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. ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the deceased claimant's claim for one-time payment from the FVEC Fund based on no valid military service. The claimant filed his claim seeking a one-time payment from the FVEC Fund in March 2009 and died in June 2010 prior to the adverse determination. The claimant's surviving spouse filed a timely notice of disagreement (NOD) in June 2011 with proper documentation identifying her as the surviving spouse submitted in July 2011. The RO continued the denial in a November 2011 determination and the appellant properly and timely appealed. The Board notes that the American Recovery and Reinvestment Act does not permit recovery from the FVEC fund by surviving spouses. However, a surviving spouse can be paid benefits due to a qualified person if the Veteran filed a claim following the enactment of the Act on February 17, 2009, but died prior to the payment of the benefit. That is the case here. As the appellant's husband had a claim pending at the time of his death, the appellant may continue his claim. The appellant requested a hearing before the Board on her December 2012 substantive appeal form. A hearing was scheduled in February 2013, but the appellant did not appear for the hearing despite notice being sent to her last known address. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on her part. REMAND The National Personnel Records Center (NPRC) has certified multiple times that the deceased claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II, as required for a one-time payment under the FVEC Fund. Nevertheless, in Tagupa v. McDonald, 2014 WL 4199213 (Vet. App. Aug. 26, 2014), the U.S. Court of Appeals for Veterans Claims (Court) addressed the question of whether a request to the NPRC satisfies VA's duty under 38 C.F.R. § 3.203(c) to request verification from a "service department" when a claimant has not submitted the requisite documentation to establish that he is a veteran for VA benefits purposes. The Court took judicial notice of a Memorandum of Agreement (MOA) between the Department of the Army and the National Archives and Records Administration (NARA) that purported to transfer "responsibility for providing reference services on the collection of Philippine Army files and archives buildings" to NARA indefinitely. Nevertheless, the Court determined that it was unclear whether the MOA assigned to NARA the authority to make administrative determinations verifying service, or assigned to NARA the duties to act simply as a reference librarian. The Court found that this ambiguity in the MOA precluded it from finding that the Department of the Army had delegated its duty to make administrative determinations verifying service to NARA, or its agency, the NPRC. As such, the Court held that in the absences of a statutorily delegated duty, the plain meaning of § 3.203(c) requires verification of service from the relevant service department. The Court vacated the Board's decision in Tagupa and remanded the appeal for VA to seek verification of service from the Department of the Army. See also Pucan v. McDonald, 13-0802, 2014 WL 4389456 (Vet. App. Sept. 8, 2014) (non-precedential decision, relying on Tagupa to vacate and remand with directions for VA to seek verification of the appellant's service from the service department). Accordingly, the case is REMANDED for the following action: 1. Forward the information provided by the appellant and deceased claimant regarding the claimant's military service to the appropriate service department (as separate from the NPRC) and request verification of whether the deceased claimant had service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II. All requests and responses should be documented in the claims file. 2. Thereafter, if the benefit sought on appeal remains denied, issue a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order. 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). The 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 2014). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).