Citation Nr: 21028242 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 11-00 490 DATE: May 10, 2021 REMANDED Legal entitlement for one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC) is remanded. REASONS FOR REMAND The appellant asserts that he had recognized guerilla service during World War II. This matter comes before the Board on appeal from a January 2010 decision denying entitlement to FVEC Fund benefits. In March 2021, the appellant failed to appear before the Board in his scheduled virtual hearing. He did not present good cause to excuse his absence. As such, the appellant's hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704. This case has a significant procedural history. More recently, in October 2016, the Board denied the appellant's claim, and he appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In November 2017, pursuant to a Joint Motion for Remand (Joint Motion), the Court vacated the Board's October 2016 decision and remanded the claim for further development. In June 2018, the Board again remanded the claim for development consistent with the guidance provided in the Joint Motion. 1. Legal entitlement for one-time payment from the FVEC Fund is remanded. Unfortunately, the Board must once again remand the claim for development consistent with the guidance provided in the Joint Motion. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). Remand is also necessary in order to afford the appellant an opportunity to challenge his exclusion from the reconstructed roster with the Department of the Army. The Board's June and November 2018 remands directed the Agency of Original Jurisdiction (AOJ) to request the appellant's two claims folders from the Army or its designated records agency, the National Personnel Records Center (NPRC). NPRC has still not provided the claims folders or stated that the guerrilla roster was the only information it had pertaining to the appellant. In order to fully comply with the Joint Motion, the AOJ must again request this information from NPRC. Furthermore, 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 FVEC 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 his 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 his 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 the application, as well as any other pertinent information. 2. The Army's September 2015 communication indicated that two "claim folders" existed for the appellant. The Court's November 2017 Joint Motion found that VA failed to adequately assist the appellant by not requesting these folders. Request that NPRC provide to VA the claim folders that it identified in September 2015. NPRC has provided the guerrilla roster for the appellant. However, NPRC has not indicated if it has any further "claims folders" for the appellant or any other additional information relevant to the appellant. NPRC must provide both claims folders and/or any additional information that it has relevant to the appellant or indicate that the guerrilla roster it provided is the only information that it has relevant to the appellant. If such is not available, a negative response, with sufficient explanation, is required. 3. 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. B. MULLINS 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.