Citation Nr: 1817489 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 10-44 379A ) 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 VA benefits as a surviving spouse, including eligibility for payment from the Filipino Veteran Equity Compensation Fund (FVECF). ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The initial appellant in this case, MFF, served in the Philippine Armed Forces and claimed qualifying service with the U.S. Armed Forces in the Philippines during World War II for purposes of receipt of a one-time payment under the Filipino Veteran Equity Compensation Fund (FVECF). MFF died in August 2016. The appellant, RPF, is the claimant's surviving spouse. On this basis, the RO recognized RPF as a valid substitute for MFF in the instant appeal. The Board also recognizes this substitution. See Suguitan v. McDonald, 27 Vet. App. 114, 116, noting that if a person who is eligible for payment under the FVECF dies before payment is made, the payment shall be made instead to the surviving spouse. On an October 2011 Form 9, MFF requested a Board hearing. Subsequently, in April 2014 the RO contacted MFF to determine whether he still desired a hearing. In a May 2014 response, MFF indicated that he did not desire a Board hearing. Consequently, the October 2011 hearing request is considered withdrawn. The Board also notes that the appellant has not subsequently requested a hearing. 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 The appellant seeks VA benefits, including FVECF payment, as the surviving spouse of a veteran. For her to qualify for VA benefits there must be affirmative evidence that her spouse was a veteran for the purpose of benefits administered by VA, which requires that he had qualifying military service in the U.S. Armed Forces. Thus far, the RO has denied this appeal based on negative certifications by the National Personnel Records Center (NPRC) in January 2009, August 2011 and January 2014. In January 2009, the NPRC certified that the appellant's spouse 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. In August 2011 and January 2014, the NPRC certified that there was no change warranted in the previous negative service certification. However, in February 2017, the appellant submitted a certificate that appears to include the signature of the current President of the United States. The text of this certificate is as follows: "The United States honors the memory of (MFF). This certificate is awarded by a grateful nation in recognition of devoted and selfless consecration to the service of our country in the Armed Forces of the United States." Notably this additional piece of evidence has not been forwarded to the appropriate United States military service department to determine whether the appellant's spouse had qualifying service for eligibility for VA benefits. 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 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 Capellan holding is applicable to the instant case. As the additional piece of evidence received in February 2018 was not included in the previous requests to the service department for verification of service of the appellant's spouse, 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's spouse had qualifying service in the United States Armed Forces in the Far East during World War II. This request should specifically include the "Presidential Certificate" received by VA in February 2018, the January 1946 Affidavit of Philippine Army Personnel received by the RO in February 2014; any other documentation of record issued by the Armed Forces of the Philippines pertaining to the service of the appellant's spouse; any buddy statements pertaining to the service of the appellant's spouse during World War II; and any other information in the claims file pertinent to the request for verification of service from the service department. 2. After the above development is completed, the AOJ should readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and provide the appellant the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant until she is notified. 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). _________________________________________________ KELLI A. KORDICH 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).