Citation Nr: 20036766 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 17-05 226 DATE: May 28, 2020 REMANDED The issue of whether the appellant has basic eligibility for Department of Veterans Affairs (VA) disability benefits is remanded. REASONS FOR REMAND The appellant asserts that she had recognized guerilla service from October 1942 to November 1945 with the Walter Cushing Guerrillas. This matter comes before the Board on appeal from a June 2016 decision denying entitlement to VA benefits due to lack of qualifying service. In April 2017, the Board denied entitlement to VA benefits. In May 2019, the Court of Appeals for Veterans Claims (Court) issued a Memorandum Decision setting aside the Board’s denial and remanding the issue for readjudication consistent with the findings of the Court. 1. The issue of whether the appellant has basic eligibility for Department of Veterans Affairs (VA) disability benefits is remanded. The Board sincerely regrets the additional delay, but remand is necessary in order to obtain the January 2016 Memorandum of Agreement (MOA) between the Army and the National Personnel Records Center (NPRC), as well as afford the appellant an opportunity to challenge these findings with the Army. The May 2019 Memorandum Decision set aside the Board’s denial as the January 2016 MOA between the Army and NPRC was not associated with the claims file prior to adjudication. Instead, the MOA was referenced by the Regional Office, but the Board did not independently review the document prior to denying the appellant’s claim. As a result, the January 2016 MOA must be sought and associated with the claims file on remand. Additionally, caselaw has developed since the issuance of the Court’s Memorandum Decision. If a claimant has not had the opportunity to challenge inclusion in the Army’s reconstructed roster, the Federal Circuit held in July 2019 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, there is no indication that the appellant has sought correction of the reconstructed roster from the Army. On remand, the appellant should be afforded an opportunity to provide any supportive documents with an application to correct her military record and challenge her exclusion from the reconstructed roster. The matters are REMANDED for the following action: 1. Obtain the January 2016 MOA, as well as any updated MOAs applicable to verification of guerilla service during World War II, and associate these documents with the claims file. 2. 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. 3. 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.