Citation Nr: 1632670 Decision Date: 08/17/16 Archive Date: 08/24/16 DOCKET NO. 10-40 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to nonservice-connected death pension benefits. REPRESENTATION Appellant represented by: E. P. Fernandez, One Time Agent ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The appellant, who is the decedent's surviving spouse, seeks entitlement to VA death pension benefits on the basis of her husband's service in the Republic of the Philippines during World War II. The death certificate shows that the appellant's husband died in March 1995. In June 2009, the RO denied the appellant's claim of entitlement to VA death pension benefits, accrued benefits, and dependency and indemnity compensation benefits. The appellant subsequently indicated that she was only appealing the denial of the nonservice-connected death pension benefits. Thereafter, a statement of the case was issued in August 2010 with regard to the issue of entitlement to nonservice-connected death pension, and the appellant perfected her appeal in September 2010, again indicating that she was only appealing the issue of entitlement to nonservice-connected death pension benefits. In her September 2010 substantive appeal, the appellant also asked for a hearing before a Veterans Law Judge at VA Central Office in Washington, D.C. The appellant was scheduled for the requested hearing at the Central Office in September 2013 and failed to appear. She did not provide any reason for her failure to appear. In October 2013, the Board denied the claim of entitlement to nonservice-connected death pension benefits. Thereafter, the appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a January 2015 Joint Motion for Remand (JMR), the Court vacated the October 2013 Board decision for actions consistent with the JMR. In June 2015, the appeal was remanded in compliance with the JMR as will be explained further below. 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 In the January 2015 JMR, it was indicated that the parties agreed that remand of appellant's claim of entitlement to nonservice-connected death pension benefits was warranted in order for the Board to implement the Court's holding in Tagupa v. McDonald, 27 Vet. App. 95 (2014), and to contact the appropriate service department in order to verify the service of the appellant's husband. The parties stated that by regulation, VA must "request verification of service from the service department" when the claimant has not submitted satisfactory evidence to prove service required for a VA benefit. 38 C.F.R. § 3.203(c). The parties noted that in its recent decision in Tagupa, the Court held that a request to the National Personnel Records Center (NPRC) did not satisfy the regulation's requirement for contacting the service department. Therefore, in June 2015 the claim was remanded in order to contact 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. In July 2015, a Request for Information was sent requesting that the Department of the Army confirm which of the documents submitted by the Veteran were researched in compliance with Tagupa and the Remand. In December 2015, a response was received from the National Personnel Records Center (NPRC) noting that an Expert Archives Technician had reviewed the Army Organization Records and was able to identify responsive records supporting the Department of the Army's previous negative service determination, and that a claims folder had been found for the Veteran which did not contain an AGO Form 23. A January 2016 VA Form 21-2101 noted no change warranted from the previous negative service determination; however the "Endorsement-Verification by Service Department" was signed and stamped by the NPRC. While the NPRC appears to have possibly been in contact with the Department of the Army according to the December 2015 letter, it is unclear what the actual response from the Department of the Army itself was, or whether the Department searched its own records, as the letter was provided by the NPRC. Given that a request to the NPRC is not sufficient under Tagupa, the Board finds that the service department should be contacted again, and a direct response from the service department should be provided to ensure that the department has attempted to verify whether the deceased claimant had service as a member of the Philippine Commonwealth Army. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is REMANDED for the following actions: (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.) 1. Forward the information provided by the appellant and deceased claimant regarding the claimant's military service to the Department of the Army or 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. A response should be provided directly by the Department of the Army or other appropriate service department (as separate from the NPRC). If the information and response cannot be obtained directly from the service department, a rationale should be provided, with all requests and responses documented in the claims file. 2. Thereafter, readjudicate the remaining issue. 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). 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 2014). _________________________________________________ K.J. ALIBRANDO 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).