Citation Nr: 21028474 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-39 965 DATE: May 11, 2021 REMANDED The claim for entitlement to Department of Veterans Affairs (VA) death benefits is remanded. REASONS FOR REMAND In this case, the appellant's spouse passed away in February 2003. The appellant seeks entitlement to VA death benefits based on the assertion that her spouse had qualifying service in the Philippine Army during World War II, to include status as a former prisoner of war. Historically, in a December 2017 decision, the Board denied the appellant's application for VA death benefits on the grounds that new and material evidence was not received to reopen the issue as to whether the appellant's spouse had established "veteran" status for the purpose of meeting basic eligibility requirements for VA death benefits. In a January 2019 Joint Motion for Remand (JMR), the Court of Appeals for Veterans Claims (Court) vacated and remanded the December 2017 Board decision. The parties noted that it appeared additional information had been received since a final March 1995 decision that had not been utilized in an attempt to verify the appellant's spouse's claimed service. Pursuant to the January 2019 JMR, the Board remanded the appellant's claim to attempt to verify her spouse's service, including the additional information noted in the JMR. See July 2019 Board decision. The agency of original jurisdiction (AOJ) substantially complied with the July 2019 Board remand instructions. In February 2021, the service department reported that no change was warranted from prior negative certifications based on the new information provided concerning the additional unit the spouse had served in and/or the names of next of kin. See February 2021 VA 21-3101. The service department determined the appellant's spouse did not have service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. The Board sincerely regrets the additional delay, but finds remand is once again necessary. In a decision from the United States Court of Appeals for the Federal Circuit, issued after the January 2019 JMR and July 2019 Board decision, 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's Board for Correction of Military Records. Dela Cruz v. Wilkie, 931 F.3d 1143, 1152 (2019). In the present case, it does not appear that the appellant has filed a request through the Army Board for Correction of Military Records (ABCMR) to have her spouse's service recognized by the Army. On remand, the appellant should be afforded an opportunity to provide documents pertaining to her spouse's military service to the ABCMR in support of an application to have her spouse's military service included on the reconstructed roster. The matter is REMANDED for the following action: 1. Send the appellant a letter requesting that she promptly apply for a correction of her spouse's military record with the Army Board for Correction of Military Records based on his service records and the other available evidence that 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. 2. If the appellant confirms she has filed her application for correction with the Army Board for Correction of Military Records, 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. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, Associate 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.