Citation Nr: 1510742 Decision Date: 03/13/15 Archive Date: 03/24/15 DOCKET NO. 11-02 931A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Philippines THE ISSUE Legal entitlement to death benefits administered by the Department of Veterans Affairs (VA). ATTORNEY FOR THE BOARD H. Papavizas, Associate Counsel INTRODUCTION The Appellant seeks legal entitlement to VA death benefits on the basis that her deceased husband should have been recognized as a Veteran of the Armed Forces of the Philippines. 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 Philippines, which denied the Appellant's claim for legal entitlement to VA death benefits. By way of background, the Board notes that the decedent previously filed a claim for VA benefits, which was originally denied by the RO in an August 2001 rating decision. The decedent perfected an appeal as to the RO's August 2001 decision in October 2002. In a subsequent March 2004 decision, the Board denied the decedent's claim, finding that he had no service in the Philippine Commonwealth Army, including the recognized guerrillas, in the service of United States Armed Forces. Thereafter, in September 2004, the decedent passed away. The Appellant in the current appeal has submitted her claim as the surviving spouse of the decedent. As an initial matter, the Board notes that the RO has previously raised the issue regarding the timeliness of the appeal as it found that the Appellant had not timely perfected her appeal by submitting a VA Form 9 within the prescribed timeline. However, it is evident that the RO has retroactively accepted a former statement in lieu of a VA Form 9, thus waiving objection to timeliness. See Percy v. Shinseki, 23 Vet. App. 37 (2009). As such, this appeal is properly before the Board. In March 2014, the Board remanded the case for further development, including the issuance of a new Request for Information with the corrected discharge date - May 8, 1946 - to verify the decedent's service. The Board's review of the record demonstrates that the AOJ substantially complied with the directives of the March 2014 remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with, aff'd, Dyment v. Principi, 287 F.3d 1377 (2002)). Nevertheless, remand is warranted for the reasons expressed below. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). The Appellant seeks to establish the decedent's entitlement to recognition as a Veteran for the purpose of establishing legal entitlement to VA death benefits. Specifically, she asserts that the decedent served from November 15, 1942, to either April 15, 1946, or May 8, 1946, as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Army Forces. The Board finds that a remand is necessary for the AOJ to seek further verification of the decedent's service from the Department of the Army, instead of the National Personnel Records Center (NPRC). In making this determination, the Board notes that a person seeking VA benefits must first establish by a preponderance of the evidence that the service member upon whose service such benefits are predicated has attained the status of Veteran. D'Amico v. West, 12 Vet. App. 264 (1999) rev'd on other grounds, 209 F.3d 1322 (2000); Holmes v. Brown, 10 Vet. App. 38, 40 (1997). For the purpose of establishing entitlement to 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, if the evidence meets 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 the Department of Veterans Affairs, the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). In addition, 38 C.F.R. § 3.203(c) provides, in pertinent part, that "[w]hen a claimant does not submit evidence of service or the evidence submitted does not meet the requirements of paragraph (a) of this section, the VA shall request verification of service from the service department." VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In addition, service department findings are binding on the VA for purposes of establishing service in the U.S. Armed Forces. Id.; see also Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). In this case, the Appellant has submitted various documents attempting to substantiate her deceased husband's service and confirm his status as a Veteran. Specifically, she has submitted: (1) A May 8, 1946, Affidavit For Philippine Army Personnel reflecting the decedent's service in the "'M' Co., 3rd Bn, 74th Inf, 7th MD," as either a USAFFE-GUERRILLA or civilian guerilla, wherein it was also noted that the decedent "JOINED ABCEDE GRLA COMPANY FORCE AS COMPANY CLERK AND OUR UNIT ENGAGED IN COMBAT IN THE VICINITY OF CADIZ, NEGROS OCC, UNTIL 2 MAY '45;" (2) A September 30, 1998, certification from the Office of the Adjutant General of the Armed Forces of the Philippines reflecting that the decedent was recognized as part of "'M' Co 3rd Bn, 74th Inf, Regmt (F-23)" from November 15, 1942 to May 8, 1946; (3) An October 9, 1999, Joint Affidavit by two individuals who knew the decedent, asserting, inter alia, that they served as "USAFFE-GUERILLA during World War II" and knew that the decedent "served as USAFFE-GUERILLA with a rank of Corporal;" (4) The transcript of the decedent's October 2, 2003, Board hearing, which documents the decedent's sworn testimony that he served as a member of the guerilla Army in M Company, 3rd Battalion, 74th Infantry Regiment from 1942 to 1946 (see Board Hearing Tr. at 3); (5) An October 20, 2004, certification from the Office of the Adjutant General of the Armed Forces of the Philippines reflecting that the decedent was recognized as part of "Div OM Det 7th MD" from November 15, 1942 (F-23) to May 8, 1946 (F-23); and (6) A September 20, 2010, statement from the Appellant that her deceased husband "started his military status by joining the 'guerrilla' movement against the Japanese Imperial Forces on the 15 of November, 1942," that "on November 15, 1945, he was promoted [to] the rank of 'corporal' with the 'M' Co., 3rd Battalion, 74th Inf. Reg. and [continuously] served the guerrilla movement...until May 8." Moreover, on various occasions, the AOJ has requested verification of service from the NPRC using the decedent's name, his place and date of birth, his reported dates of service (including alternative discharge dates of April 15, 1946 and May 8, 1946), and the unit designations provided in supporting documents. See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008) (holding that the appellant has the right to have the NPRC review any relevant records in determining veteran status). Specifically, the claims file reflects AOJ inquiries to the NPRC made in 2001 and 2002 (using the April 15, 1946 discharge date), as well as in 2014 (using the May 8, 1946 discharge date). The March 2002 and July 2002 responses to these inquiries were negative, indicating that the subject of the inquiry had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Army Forces. Additionally, in the most recent June 2014 NPRC response, which utilized the updated discharge date of May 8, 1946, it was noted that no change was warranted from the prior negative certification. Significantly, however, the United States Court of Appeals for Veterans Claims (Court) recently held that obtaining verification of service from the National Archives Records Administration (NARA), or it agency, the National Personnel Records Center (NPRC), does not comply with the provisions of 38 C.F.R. § 3.203(c), which states that VA "shall request verification of service from the service department." Tagupa v. McDonald, 27 Vet. App. 95 (2014). In this respect, the Court determined that a 1998 Memorandum of Agreement (MOA) between the Department of the Army and NARA, wherein the Department of the Army assigned to NARA the responsibility of "providing reference service on the collection of Philippine Army files and archival holdings," did not satisfactorily establish that the Army had delegated its authority to make service department determinations to NARA. Accordingly, in light of the recent decision in Tagupa and the fact that all service verification efforts to date have been through the NPRC, rather than the Department of the Army, the Board finds that this case must be remanded for certification of the decedent's service by the Department of the Army. Accordingly, the case is REMANDED for the following action: 1. Request that the Department of the Army verify the decedent's alleged qualifying service as a guerilla from November 1942 to May 1946, under the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Army Forces. All documents referenced in the claims folder should be considered, including: (a) the May 8, 1946, Affidavit For Philippine Army Personnel reflecting the decedent's service in the "'M' Co., 3rd Bn, 74th Inf, 7th MD," as either a USAFFE-GUERRILLA or civilian guerilla, wherein it was also noted that the decedent "JOINED ABCEDE GRLA COMPANY FORCE AS COMPANY CLERK AND OUR UNIT ENGAGED IN COMBAT IN THE VICINITY OF CADIZ, NEGROS OCC, UNTIL 2 MAY '45;" (b) the September 30, 1998, certification from the Office of the Adjutant General of the Armed Forces of the Philippines reflecting that the decedent was recognized as part of "'M' Co 3rd Bn, 74th Inf, Regmt (F-23)" from November 15, 1942 to May 8, 1946; (c) the October 9, 1999, Joint Affidavit by two individuals who knew the decedent, asserting, inter alia, that they served as "USAFFE-GUERILLA during World War II" and knew that the decedent "served as USAFFE-GUERILLA with a rank of Corporal;" (d) the transcript of the decedent's October 2, 2003, Board hearing, which documents the decedent's sworn testimony that he served as a member of the guerilla Army in M Company, 3rd Battalion, 74th Infantry Regiment from 1942 to 1946 (see Board Hearing Tr. at 3); (e) the October 20, 2004, certification from the Office of the Adjutant General of the Armed Forces of the Philippines reflecting that the decedent was recognized as part of "Div OM Det 7th MD" from November 15, 1942 (F-23) to May 8, 1946 (F-23); and (f) the September 20, 2010, statement from the Appellant that her deceased husband "started his military status by joining the 'guerrilla' movement against the Japanese Imperial Forces on the 15 of November, 1942," that "on November 15, 1945, he was promoted [to] the rank of 'corporal' with the 'M' Co., 3rd Battalion, 74th Inf. Reg. and [continuously] served the guerrilla movement...until May 8." Please note that this remand is pursuant to the Court's recent holding in Tagupa v. McDonald, 27 Vet. App. 95 (2014), in which the Court held that the plain meaning of 38 C.F.R. § 3.203(c) requires verification of service from the relevant service department, which would be the Department of the Army, as opposed to the NPRC. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Appellant should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, 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). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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). _________________________________________________ NICOLE KLASSEN Acting 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).