Citation Nr: 21030125 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 14-13 612 DATE: May 17, 2021 REMANDED The claim of entitlement to Department of Veterans Affairs (VA) death benefits is remanded. The claim of entitlement to accrued benefits is remanded. REASONS FOR REMAND This appeal comes before the Board from two separate claims. First, the appellant's mother filed a claim in September 2005 seeking entitlement to VA death benefits based upon the asserted service of the appellant's father. That claim has a long appellate history, including a July 2007 hearing before the undersigned Veterans Law Judge. While that appeal was pending before the Court of Appeals for Veterans Claims, the appellant's mother passed away. The appellant filed a motion to substitute before the Court. In a September 2013 order, the Court denied the motion to substitute, set aside the Board's June 2010 decision, and dismissed the appeal. The appellant filed a claim for accrued benefits at the Regional Office (RO) in July 2013. That claim was denied in a July 2013 administrative decision and appealed by the appellant in a March 2014. The Board remanded these issues in August 2018 in order to obtain a substitution determination from the RO. In October 2018, the RO granted substitution to the appellant, the surviving child of his late mother and the Filipino service member. The Board notes that the appellant is not a child, as defined by VA. Thus, the substitution is limited to the appellant's status as the person who bore the expense of last sickness or burial. 38 U.S.C. § 5121A; 38 C.F.R. §§ 3.1000, 3.1010. 1. The claim of entitlement to VA death benefits, to include accrued benefits, is remanded. The Board sincerely regrets the additional delay, but remand is again necessary in order to ensure compliance with changes in case law. Recently, the United States Court of Appeals for the Federal Circuit has ruled that a claimant should have an opportunity to challenge the Department of the Army's Reconstructed Guerrilla Roster prior to final adjudication of a claim on the merits for recognition of service. 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 the 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 applications 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 exclusion from the reconstructed roster prior to a final denial of VA benefits. Reyes v. Wilkie, 780 F. App'x 923 (Fed. Cir. 2019). In the present case, there is no indication that the appellant or the appellant's parents have sought correction of the reconstructed roster from the Army. On remand, the appellant should be allowed an opportunity to provide any supportive documents with an application to correct the appellant's father's military record and challenge 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 the appellant's father's service record with the Army Board for Correction of Military Records. Include the proper address for mailing or filing, the documentation required to support the application, and 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. Harvey P. Roberts 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.