Citation Nr: 1804937 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-30 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to dependency and indemnity compensation (DIC) and/or death pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Appellant seeks entitlement to DIC or death pension benefits as a surviving spouse. The deceased (P.H.) presently has no recognized service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in St. Paul, Minnesota. Jurisdiction of the claims file resides with the San Diego, California RO. In October 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. 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 Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND While the Board regrets the additional delay, remand is required prior to adjudication of the Appellant's claim. The Appellant seeks DIC and/or death pension benefits as a surviving spouse. However, prior to the adjudication of the merits of the Appellant's claim, the Appellant's deceased husband must be recognized as a "veteran" for the purpose of establishing basic eligibility for VA 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 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...[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. 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 a "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). The Appellant has been unable to supply P.H.'s discharge papers or to provide identifying information such as his service number. Instead, she has submitted a May 2015 letter from the Los Angeles, California RO informing her of the July 1973 fire at the National Personnel Records Center (NPRC). The letter also states that P.H. had active duty service with the United States Army from July 1954 to September 1958. However, a March 2016 Deferred Rating Decision indicated that the service dates listed on the May 2015 VA letter were unverified as they seemed to be pulled from a Beneficiaries Identification and Records Location Subsystem (BIRLS) inquiry that revealed multiple individuals with P.H.'s same name. Furthermore, even if the uncertainty surrounding the dates listed on the May 2015 letter were removed, the May 2015 VA letter itself could not serve as verification of service for VA eligibility purposes as the Court of Appeals for Veterans Claims (Court) held in Tagupa v. McDonald, that under 38 C.F.R. § 3.203(c), verification may only come from a service department. 27 Vet. App. 95, 100 (2014) (citing Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998)) (emphasis added). Accordingly, under 38 C.F.R. § 3.203(c), VA cannot verify service solely upon documentation that VA itself previously generated. In March 2011, the RO requested verification of P.H.'s service from the NPRC. The NPRC indicated that it could not identify a record for P.H. without his service number, and suggested looking at "PIES help regarding branch of service rules." In this response, the NPRC did not certify that the records did not exist. Rather, the NPRC certified that there was inadequate information with which to locate the records. Further, in Tagupa, the Court held that the Department of the Army, not merely the NPRC, had the authority to verify an individual's period of service. 27 Vet. App. at 101. The record currently lacks any evidence that the Department of the Army was contacted to attempt to verify P.H.'s service. Lastly, in addition to the above, a formal finding of unavailability of service records pursuant to 38 C.F.R. § 3.159(e) is not currently associated with the claims file. As such, it appears that all avenues of inquiry regarding verification of service may not have yet been exhausted. 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. Contact the Appellant and ask her to provide any additional information regarding P.H.'s military service. 2. Then, contact (1) the NPRC, (2) the Department of the Army, and (3) any other appropriate organization and request verification of service for P.H. The RO must provide any organization contacted with copies of any relevant documents-as well as any materials or information obtained in response to Item (1)-in connection with this request. If these searches for records are unsuccessful, or if an organization certifies that such a search is not possible, then the RO should prepare a memorandum for the file to facilitate appellate review. 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Appellant and her representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. 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 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. §§ 5109B, 7112 (2012). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).