Citation Nr: 20009795 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-28 781 DATE: February 6, 2020 REMANDED The claim of entitlement to VA death benefits is remanded. REASONS FOR REMAND The Appellant’s husband served with the Philippine Army during World War II and received an honorable discharge. The Appellant’s husband passed away in August 2005. The instant matter is on appeal from an April 2015 decision. In October 2016, the Board found new and material evidence sufficient to reopen the claim of entitlement to VA death benefits and remanded the issue for an additional search of the National Personnel Records Center (NPRC) to include newly identified units of service. 1. The claim of entitlement to VA death benefits is remanded. The Board regrets the additional delay, but remand is again necessary in order to afford an opportunity for the Appellant to correct her husband’s military record with the United States Army. The Appellant asserts that her husband served as a recognized guerilla during World War II, and thus she is entitled to VA death benefits due to the nature of his service. The surviving spouse of a deceased veteran may be eligible for DIC benefits or other death benefits, including nonservice-connected death pension benefits and accrued benefits. 38 U.S.C. §§ 1310. In order to qualify for such benefits, “the party upon whose service the claimant predicates the claim... [must be] a ‘veteran.’” Cropper v. Brown, 6 Vet. App. 450, 452 (1994); see D’Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000). A veteran is defined as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). Service in the active military, naval, or air service includes service in the United States Armed Forces or, for certain purposes, service in the organized military forces or organized guerilla forces of the Government of the Commonwealth of the Philippines in the service of the U.S. Armed Forces. See 38 U.S.C. §§ 101 (10), 101(21)(c), 101(24), 107; 38 C.F.R. § 3.40. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East (USAFFE) by an order of President Franklin D. Roosevelt. Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that many of those who served in the Philippine Islands during World War II did not have qualifying active service for the purpose of receiving VA benefits. 38 U.S.C. § 107. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department’s decision on the matter is conclusive and binding on VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); 38 C.F.R. § 3.203 (c). If a claimant has not had the opportunity to challenge inclusion in the Army’s reconstructed roster, however, the Federal Circuit has held that VA cannot “rely simply on the Army’s determination that the veteran’s name does not appear on the reconstructed roster without giving the veteran a meaningful opportunity to challenge his service record.” Dela Cruz v. Wilkie, 931 F.3d 1143, 1152 (Fed. Cir. 2019). The Federal Circuit noted that VA and the Department of the Army represented that they would consider application filed by purported Filipino Guerillas claiming military service during World War II, including those not currently listed on the reconstructed roster. Such a concession was due to repeated admissions of inaccuracies in the reconstructed roster, including a 1949 Army report noting that many of the original rosters for Filipino units were lost, destroyed, or tampered with prior to the closing of the record. Additionally, officials testifying in Congressional hearings related to the Filipino Veterans Equity Compensation Fund admitted that eligible individuals may have been excluded from the reconstructed roster. As a result, the Federal Circuit determined that claimants should be afforded the opportunity to challenge their exclusion from the reconstructed roster prior to a final denial of VA benefits. See, e.g., Reyes v. Wilkie, 780 F. App’x 923, 924 (Fed. Cir. 2019). In the present case, the Appellant provided multiple documents pertaining to her husband’s military service, but it does not appear that she attempted to correct the record with the Department of the Army. Relevant documentation includes a certificate noting an honorable discharge from the Philippine Army, a Certification from the Adjutant General of the Armed Forces of the Philippines documenting that the Appellant’s husband was a guerilla, as well as an Affidavit for Philippine Army Personnel that designated the Appellant’s husband as “USAFFE-GUERILLA” and was authenticated by a Lieutenant Colonel of the Philippine Army. On remand, the Appellant should be afforded an opportunity to provide these documents in support of an application to correct her husband’s military record and challenge his exclusion from the reconstructed roster. The matters are REMANDED for the following action: 1. Provide the Appellant with all of the necessary information in order to apply for a correction of her husband’s military record with the Army Board for Correction of Military Records. Include the proper address(es) for mailing or filing, the documentation required to support her application, as well as any other pertinent information. 2. Once a reasonable period has elapsed to file the claim to the Army, if no claim has been filed, readjudicate the issue on appeal and, if necessary, return the issue to the Board. If a claim before the Board for Correction of Military Records is pending, hold readjudication of the issue until a determination is made by the Army. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.