Citation Nr: 21028751
Decision Date: 05/12/21	Archive Date: 05/11/21

DOCKET NO. 15-26 653
DATE: May 12, 2021

REMANDED

The claim of entitlement to basic eligibility for Department of Veterans Affairs (VA) benefits, to include nonservice-connected pension benefits, 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 June 2013 decision.

The Board previously remanded this issue for additional development in February 2019.

1. The claim of entitlement to basic eligibility for VA benefits, to include nonservice-connected pension benefits, is remanded.

The Board sincerely regrets the additional delay, but remand is again necessary.

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 related Congressional hearings 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:

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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. 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.