Citation Nr: 21027751 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-02 585 DATE: May 6, 2021 REMANDED Entitlement to Department of Veterans Affairs (VA) death benefits is remanded. REASONS FOR REMAND The Appellant seeks entitlement to VA death benefits based on the assertion that her spouse, C.A., who passed away in June 2004, had qualifying service in the Philippine Army during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Appellant entitlement to VA death benefits. In April 2018, the Appellant and her daughter testified at a hearing held at the RO before the undersigned Veterans Law Judge. The transcript of that hearing is in the claims file. In a June 2018 decision, the Board denied the claim. The Appellant appealed the June 2019 Board decision to the United States Court of Appeals for Veterans Claims. In a June 2020 Memorandum Decision, the Court set aside the Board's June 2018 decision and remanded the claim to the Board for further proceedings consistent with the Memorandum Decision. 1. Entitlement to Department of Veterans Affairs (VA) death benefits is remanded. Under 38 U.S.C. § 1310, veteran status must first be established in order to meet basic eligibility requirements for VA benefits. The term veteran means a person who served in the active military, naval, or air service, and who was discharged under conditions other than dishonorable. 38 U.S.C. § 101(2). 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. 38 U.S.C. §§ 101(21)(c), 101(24), 107(a)(3); 38 C.F.R. §§ 3.40, 3.41. Claimants applying for benefits establish service in one of two ways: (1) by submitting a document issued by the service department, or (2) the VA will request verification of service from the service department. 38 C.F.R. § 3.203(a), (c). The service department's decision on such matters is conclusive and binding on the VA, regardless of whatever other evidence documenting service the claimant provides to the VA. 38 C.F.R. § 3.203(c); Duro v. Derwinski, 2 Vet. App. 530 (1992); Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); January 2016 Memorandum of Agreement (delegating responsibility of verifying service to NPRC). For claims based on Philippine service in World War II, the Army relies on the reconstructed roster that was completed in 1948 to verify service. In the Memorandum Decision, the Court noted a factual inconsistency of record. In July 2012, the Agency of Original Jurisdiction attempted to verify the Appellant's spouse's service. In this first request, the AOJ noted that "[s]ubject's name [is] not listed in the Reconstructed Recognized Guerilla Roster (RRGR) maintained by VARO Manila." However, in September 2012, the AOJ attempted a second time to verify the Appellant's spouse's service. In that second request, the AOJ noted that "[s]ubject's name is also listed in the page 6 file # 285 of the Reconstructed Recognized Guerilla Roster (RRGR) maintained by VARO Manila." On remand, the AOJ should clarify whether the Appellant's spouse is listed on the RRGR maintained by VARO Manila. Additionally, in May 2016 correspondence, the NPRC noted that the Appellant's spouse's name was found in their index files, "but they did not list a G Company, 2nd Battalion, 33rd Infantry, as unit of assignment. The index files pointed to 4th REPL BN (PA) special order, #54 which indicates placement into inactive status as of February 25, 1946." In the Memorandum Decision, the Court found that the Appellant's spouse's name apparently was listed under a different unit of assignment, but NPRC did not make clear why evidence of service in that unit was not sufficient to verify service. On remand, the NPRC should clarify why assignment to 4th REPL BN (PA) special order, #54 is not sufficient to verify the Appellant's spouse's service. Finally, the United States Court of Appeals for the Federal Circuit has held that if the service department's refusal to verify service is in error, the proper recourse lies within the relevant service department, in this case the Army, not with VA. Soria v. Brown, 118 F.3d 747; Go v. Shinseki, 517 F. Appx. 941 (Fed. Cir. 2013). More recently, the Federal Circuit held that, while VA can properly rely on the Army's certification as to service, it cannot rely simply on the Army's determination that an individual's name does not appear on the reconstructed roster without giving the claimant a meaningful opportunity to challenge the Army's determination through the Army Board for Correction of Military Records. Dela Cruz v. Wilkie, 931 F.3d 1143 (2019). On remand, the Appellant should be provided an opportunity to apply to the Army Board for Correction of Military Records to have her spouse's military service included on the Army's reconstructed roster. The matters are REMANDED for the following action: 1. In light of contradiction apparent in the July 2012 and September 2012 attempts to verify the Appellant's spouse's service, clarify whether the Appellant's spouse is listed on the Reconstructed Recognized Guerilla Roster maintained by VARO Manila. 2. Contact the NPRC for clarification regarding verification of the Appellant's spouse's service in light of the May 2016 NPRC finding that the index files pointed to the Appellant's spouse's placement with the 4th REPL BN (PA) special order, #54. 3. Send the Appellant a letter suggesting that she promptly apply for a correction of her spouse's military record with the Army Board for Correction of Military Records based available evidence she has submitted to VA. Inform the Appellant that VA cannot approve her claim for VA benefits without verification of her spouse's service by the Army. Request that she respond to VA within 90 days indicating whether she has filed her application with the Army Board for Correction of Military Records or would like an extension of time to file her application. Take any steps deemed appropriate to assist the Appellant with her application. 4. If the Appellant confirms she has filed an application for correction, hold readjudication of the issue on appeal until a determination is made by the Army. Otherwise, readjudicate the appeal after awaiting the full time allotted for response. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Layton, 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.