Citation Nr: 1601762	
Decision Date: 01/14/16    Archive Date: 01/21/16

DOCKET NO.  11-06 326	)	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.


REPRESENTATION

Appellant represented by:	Daniel J. Krasnegor, Attorney at Law


ATTORNEY FOR THE BOARD

C. Eckart, Counsel



INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 administrative decision of the Regional Office (RO), in Manila, Republic of the Philippines, denying eligibility for the one-time payment from the FVEC Fund.  The original appellant had alleged qualifying service from April 1944 to February 1946 in a unit of the Commonwealth Army of the Philippines that was specifically recognized by the Army Forces, Western Pacific (AFWESPAC) as being in the service of the Armed Forces of the United States.

This case was initially before the Board in April 2013, when the Board denied eligibility to a one-time payment from the FVEC Fund.  The original appellant timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In September 2014, the Court granted a joint motion for remand, vacating the Board's decision and remanding for additional proceedings.  In April 2015, the Board remanded the case in compliance with the Court's order.  

In January 2015, the original appellant died.  The current appellant has been substituted as the claimant for purposes of processing this claim to completion.  See 38 U.S.C.A. § 5121A (substitution in case of death of a claimant who dies on or after October 10, 2008); see also 38 C.F.R. § 3.1010(e) (effective October 6, 2014).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.



REMAND

This appeal is centered on a question of entitlement to a onetime payment from the FVEC fund, with the Board having remanded this matter in April 2014 in order to request verification of the original appellant's alleged service with the service department.  

Unfortunately due process matters require another remand of this appeal.  While this matter was pending on remand and prior to the DRO's December 2015 issuance of the determination confirming the surviving spouse's status as a substitute claimant, there was a response obtained in November 2015 from the Department of the Army regarding the nature of the original appellant's service.  Since this response was obtained from the service department pursuant to the remand's request, the RO has not issued a supplemental statement of the case nor has otherwise adjudicated this matter on the merits.  

The record does not include a waiver of RO consideration of this newly obtained evidence.  (The substantive appeal was received in February 2011, prior to February 2, 2013; thus, section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amended 38 U.S.C. § 7105  by adding new paragraph (e), stating that if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013 then it is subject to initial review by the Board unless the appellant explicitly requests AOJ consideration, is not applicable.) 
  
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).  Expedited handling is requested.)

Readjudicate the issue of entitlement to eligibility to a one-time payment from the FVEC Fund with consideration of all evidence received since the issuance of the most recent RO adjudication of a January 2013 supplemental statement of the case (SSOC).  If the benefit sought is not granted, issue an SSOC and afford the appellant and her representative, if any, an appropriate opportunity to respond.  Thereafter, return the case to the Board, as appropriate, for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014).



_________________________________________________
JAMES L. MARCH
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) (2015).