Citation Nr: 1804136 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-25 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to basic eligibility for Department of Veterans Affairs (VA) benefits. ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant alleges that she was in the Commonwealth Army of the Philippines in service of the Armed Forces of the United States (USAFFE). This matter is before the Board of Veterans' Appeals (Board) on appeal of an administrative determination in January 2016 of the VA Regional Office (RO) in Manila, the Republic of the Philippines, which denied the appellant's claim for VA compensation benefits on the basis that she did not have the required military service for eligibility for VA benefits. This appeal herein pertains to the appellant's disability compensation claim filed in September 2015, seeking eligibility based on her own status as a veteran. In her notice of disagreement in February 2016, she referred to her claim for "compensation for DIC." It is not clear whether she intends to claim DIC (Dependency and Indemnity Compensation), which would entail consideration of her eligibility for VA benefits based on the status as a veteran of her deceased husband, who she also claims (in various statements) was a member of the USAFFE. As a specific, prescribed DIC application has not been received (and adjudicated) by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over such claim, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The appellant seeks VA benefits (as indicated in an application for disability compensation filed in September 2015). To qualify for VA benefits, there must be affirmative evidence that she is a "veteran" for the purpose of benefits administered by VA, which requires that she have qualifying military service. The RO denied her claim in January 2016 based on evidence indicating that she did not have the required military service. The RO relied on a negative certification by the National Personnel Records Center (NPRC) in December 2009 (in relation to a different, earlier application filed by the appellant for one-time payment from the Filipino Veterans Equity Compensation Fund) to deny her basic eligibility for VA benefits. In December 2009, the NPRC certified that the appellant had no service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the U.S. Armed Forces. However, attached to her notice of disagreement filed in February 2016, the appellant submitted various documents to include records from the Philippines's Department of National Defense, Military Service Board, dated in September 2000, as well as several affidavits, dated in May 1998, from the appellant and former military personnel including a commanding officer of her unit. Notably, such additional evidence includes dates of the appellant's service and the name of her military unit, but it was not forwarded to the appropriate United States military service department to determine whether she has qualifying service for eligibility for VA benefits. The Board notes that in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, in the context of a DIC claim, where service department certification of a claimant's service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department. The Federal Circuit held that a claimant's new evidence must be submitted and considered in connection with a request for verification of service from the service department pursuant to 38 C.F.R. § 3.203(c). The Capellan holding is equally applicable to the appellant's claim in this case. As there is no indication that the additional evidence received in February 2016 was included in any request to the service department for verification of the appellant's service, a remand is required to ensure that the recently submitted evidence is considered. 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.) 1. The AOJ should submit a new request to the service department to verify whether or not the appellant had qualifying service in the United States Armed Forces in the Far East during World War II. In connection with the request, the AOJ should provide the service department with copies of the following documents submitted by the appellant in February 2016, relative to her military service: Confirmation of Military Service certification, dated in August 2000, by the Military Service Board, Department of National Defense, Republic of the Philippines; Military Service Board 1st Indorsement, dated in September 2000, confirming the appellant as a military veteran; affidavits by the appellant, her commanding officer, fellow servicewomen, and an officer in her unit, all dated in May 1998, pertaining to the appellant's membership/duties in the Women Auxiliary Service to the "L" Co., 3rd Bn. Guerrilla Brigade, 95th Inf. Regt., 92nd Div., Leyte Area Command, for the period of November 20, 1942 to October 20, 1944; Philippine Veterans Affairs Office (PVAO) letter, dated in January 2011, verifying the appellant's pensioneer status; and the appellant's Application for Old Age Pension from PVAO. 2. After the above development is completed, the AOJ should readjudicate the appellant's claim for eligibility for VA benefits (based on her own status as a veteran). If the benefits sought remain denied, the AOJ should furnish the appellant a supplemental statement of the case, afford her opportunity to respond, and return the case 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 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. §§ 5109B, 7112 (2012). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).