Citation Nr: 21072979 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-61 214 DATE: December 7, 2021 REMANDED Basic eligibility for Department of Veterans Affairs (VA) death benefits is remanded. REASONS FOR REMAND The claim of entitlement to VA death benefits is remanded. The appellant's spouse, F.J., died in February 1997. The appellant contends that he should be recognized as a veteran by virtue of his service during World War II. Specifically, she contends he served with B Company, 1st Battalion, 121st Infantry in the United States Army Forces in the Philippines from September 1944 to March 1945. Service as an Old (Regular) Philippine Scout before October 6, 1945, is included for pension, compensation, DIC, and burial allowances. 38 C.F.R. § 3.40(a). Service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines in the service of the Armed Forces of the United States (including recognized guerilla service) is qualifying service for compensation, DIC, and burial allowance. However, it is not qualifying service for VA pension benefits. 38 U.S.C. §§ 107(a), 1521; 38 C.F.R. §§ 3.40, 3.41. Recognized guerrilla service and reenlistments of Philippine Scouts in the Regular Army from October 6, 1945, to June 30, 1947, are also not included for pension benefits. 38 U.S.C. § 107; 38 C.F.R. §§ 3.7(p), 3.40(b), (d), 3.203. Service in the United States Armed Forces has not been certified by the service department. In March 2017, the National Personnel Records Center (NPRC) reported having no record of F.J. In April 2017, the NPRC reported, based on a review of the application provided by VA and official information in the Army Organizational Records, they were unable to identify a claim folder for F.J. In September 2017, the NPRC reported that they were able to identify responsive records supporting the Department of the Army's previous negative service. They were still unable to identify a claim folder for F.J. Finally, in September 2017, the Department of the Army verified that no change was warranted in the prior negative certification. The Federal Circuit has ruled that a claimant should have an opportunity to challenge the Department of the Army's reconstructed roster prior to final adjudication on the merits. In July 2019, the Federal Circuit 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 an 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 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 spouse'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 F.J.'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 time 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. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.