Citation Nr: 21026997 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-37 907 DATE: May 4, 2021 REMANDED Entitlement to Veteran status for purposes of eligibility for Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The Appellant had service in the United States Army Reserves from June 1954 to May 1962. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2017 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Philadelphia, Pennsylvania. In an August 2019 decision, the Board denied the Appellant's claim finding that there was insufficient evidence to establish Veteran status. The Appellant subsequently appealed the Board's August 2019 decision to the Court of Appeals for Veterans Claims (CAVC). In a July 2020 Joint Motion for Remand (JMR), the CAVC vacated the Board's August 2019 decision and remanded the claim to the Board. 1. Entitlement to Veteran status for purposes of eligibility for VA benefits is remanded. The Appellant seeks recognition as a Veteran for VA purposes. He contends that he served in the Army Reserves. A "veteran" is a person who served in active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2). "Active military, naval, or air service" includes active duty and, in certain circumstances, periods of active duty for training and inactive duty for training. 38 U.S.C. § 101(24). In this case, the question before the Board is whether the Appellant qualifies as a "Veteran" as a result of service in the Army Reserves. "Active duty" means full-time duty in the Armed Forces, other than active duty for training. 38 U.S.C. § 101(21). For purposes of establishing entitlement to VA benefits, the 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 an original Certificate of Discharge, without verification from the appropriate service department under 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 VA, the document is genuine, and the information contained therein accurate. 38 C.F.R. § 3.203(a). When a claimant does not submit evidence of service that meets the above requirements of 38 C.F.R. § 3.203(a) and (b), VA "shall request verification of service from the service department." 38 C.F.R. § 3.203(c). 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. 38 C.F.R. § 3.203(c). See Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department; not with VA. In support of his claim, the Appellant has provided the AOJ the following evidence: A copy of a military discharge certificate, which purports to show his military service in the United States Army Reserves (USAR) from June 1, 1954 to May 30, 1962. However, the Appellant has not provided any other supporting documents indicating any periods of active duty, active duty for training or inactive duty for training. VA has made several attempts to verify the Appellant's claimed service. See 38 C.F.R. § 3.203. These repeated attempts have all have come up negative. The National Personnel Records Center (NPRC) has been contacted to verify the Appellant's alleged service on multiple occasions. In July 2017 and August 2017, the NPRC reported that there was no record of the Appellant being on active duty in the military. However, as noted below, there were discrepancies and errors in prior requests for information. In his June 1971 Veteran's Application for Program of Education or Training, the Appellant reported his dates of service as June 1, 1954 to May 30, 1957, and a service number of [REDACTED]. In a September 1971 Request for Information, the RO used service number [REDACTED] when requesting information from the NPRC. The response noted that the Appellant "enlisted U.S. Naval Reserves June 1, 1954, performed no extended active duty, honorable discharge May 30, 1962." The Board notes that the Appellant has stated that he served in the United States Army (USA) on all applications to VA. In a July 2017 Request for Information, the RO used service number [REDACTED] when requesting information from the NPRC. The response noted that the NPRC cannot identify a record based on the information provided. In an August 2017 Request for Information, the RO used service number [REDACTED] when requesting information from the NPRC. The RO noted the discrepancies in the prior requests for information, to include the use of [REDACTED] and the notation of Naval Reserve service, and also noted that the Appellant had been granted education benefits. The RO requested that the NPRC "please review both Army and Naval records to deconflict evidence of record." The response noted that the NPRC cannot identify a record based on the information provided. The NPRC has been unable to confirm any record of the Appellant's U.S. military service. See, e.g., August 2017 NPRC Request for Information. The certification request involved two different potential service military identification numbers as well as the Appellant's Social Security number. Given the discrepancies noted above, and providing the Appellant with every opportunity to substantiate his claim, the Board finds that VA's duty to assist requires additional efforts to obtain the Appellant's reserve service records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Thus, the Board finds that further development is necessary to correct a duty to assist error. The matters are REMANDED for the following action: 1. Request that the appellant provide as many details as possible, including any additional documentation not already submitted, showing details of serving in the Army Reserves. 2. Associate with the claims file all documentation regarding the Appellant's June 1971 request for education benefits, to include any determinations or grants of benefits. 3. Request the Appellant's complete official military personnel file (OMPF) and service treatment records (STRs) from the Department of the Army Human Resources Command, Reserve Command, and any other appropriate and available source, to determine whether the Appellant had qualifying service. Provide the appropriate entity a copy of a military discharge certificate, which purports to show the Appellant's military service in the United States Army Reserves from June 1, 1954 to May 30, 1962. The RO is directed to make attempts using the Appellant's social security number as well as his potential service numbers of [REDACTED] and [REDACTED]. If any requested records are deemed unavailable, the record should be annotated to reflect such and the Appellant notified in accordance with 38 C.F.R. § 3.159(e). If qualifying service cannot be verified a formal finding of unavailability must be completed for the record. 4. Upon completion of the directive above, verify all active duty for training and inactive duty for training dates for service in the Army Reserves from 1954 to 1962. Document all requests for information as well as all responses in the claims file. Verify whether the specific active duty for training and inactive duty for training periods falls under the authority of 10 U.S.C. § 12401 or 32 U.S.C. §§ 502, 503, 504, or 505. If necessary, a request should be made to the Defense Finance and Accounting Service. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. 5. Finally, undertake any other indicated development, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Appellant's satisfaction, the Appellant and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor 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.