Citation Nr: 21027271 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-42 488 DATE: May 5, 2021 REMANDED The issue of whether the appellant has legal entitlement to basic eligibility for Department of Veterans Affairs (VA) death benefits is remanded. REASONS FOR REMAND The appellant asserts that her deceased spouse (hereinafter, "D.S.") had recognized guerilla service during World War II. D.S. passed away in July 2013, and the appellant subsequently applied for death benefits in September 2015. This matter comes before the Board on appeal from a December 2015 decision denying entitlement to VA benefits due to lack of qualifying service. The Board remanded this issue in August 2018 for additional evidentiary development. 1. The claim of entitlement to VA death benefits is remanded. The appellant contends that her spouse had qualifying service as a member of the Philippine Commonwealth Army during World War II. 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. In this case, in a March 1946 Affidavit for Philippine Army Personnel, D.S. indicated that he was inducted into the 108th Division in April 1943. D.S. served from April 1943 to April 1945 to "I" Company, 3rd Battalion, 128th Regiment. D.S. served from April 1945 to June 1945 with the 8th Army. He was discharged on August 1, 1945, from "D" Company, 127th Division, of the 10th Military Division. An October 1948 record indicated that he served in the 108th Division of the 10th Military Division. An October 1997 record indicated that D.S. served with "B" Company, 2nd Battalion, 127th Division, of the 10th Military Division, from at least March 15, 1943, to April 16, 1943, and from April 17, 1945, to July 31, 1945. A May 2010 record indicates that D.S. served in "D" Company, 2nd Battalion, 108th Division. In September 2015, the Regional Office contacted the National Personnel Records Center (NPRC) to request verification of D.S.'s reported guerilla service with "D" Company, 108th Division, of the 10th Military Division. In October 2015, the NPRC certified that he had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. In October 2018, pursuant to the Board's remand, the Regional Office contacted the NPRC to conduct a search of the following units: 1) "I" Company, 3rd Battalion, of the 128th Regiment; 2) "D" Company, 127th Division, of the 10th Military Division; and; 3) "B" Company, 2nd Battalion, 127th Division, of the 10th Military Division. The NPRC returned a response confirming no change in the prior negative certification. Recently, 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 D.S.'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 D.S.'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. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.