Citation Nr: 22010550 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 17-05 226 DATE: February 23, 2022 REMANDED The issue of whether the appellant has basic eligibility for Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The appellant seeks entitlement to VA benefits based on service in the organized guerrilla forces of the Philippine Commonwealth Army from October 1942 to November 1945. Historically, the appellant filed a claim for VA disability compensation benefits in April 2016. In April 2017, the Board denied the appellant's claim on the grounds that she did not have qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States. In May 2019, the United States Court of Appeals for Veterans Claims (Court) issued a memorandum decision setting aside the April 2017 Board decision. The Board remanded the appeal for additional development in May 2020, February 2021, and July 2021. The Board sincerely regrets the additional delay, but finds remand is once again necessary for the reasons discussed further below. The issue of whether the appellant has basic eligibility for VA benefits is remanded. Certain benefits, including disability compensation, may be authorized in limited circumstances for individuals with service in the Philippine Commonwealth Army, including certain organized guerilla forces in the service of the United States Armed Forces. See 38 U.S.C. § 107; 38 C.F.R. § 3.40. These circumstances include when an individual is called into service of the Armed Forces of the United States by orders issued from the United States Army pursuant to the Military Order of the President of the United States dated July 26, 1941. The circumstances for individuals with guerilla service include service under a commissioned officer of the United States, or under a commissioned officer of the Philippine Commonwealth Army recognized by and cooperating with the United States Armed Forces. In this case, as proof of qualifying service, the appellant submitted a certificate of service indicating that she served as a seamstress in the Walter Cushing Guerillas attached to the 121st Infantry of the United States Army from October 1942 to November 1945. See certificate of service received by VA in September 2009; see also July 2017 correspondence from the appellant. In September 2016, the appellant submitted a Questionnaire About Military Service indicating that she served as a cook with the Regimental Headquarters, 2nd Regiment, 8th Division, N.L. See September 2016 NA Form 13075; see also October 1972 Confirmation Officers and Enlisted Record (indicating the appellant was presently serving as a cook with the Regimental Headquarters, 2nd Regiment, 8th Division, N.L., and that she had formerly served in the Walter Cushing Guerillas). The Board denied the appellant's claim for entitlement to VA benefits in April 2017 based on a determination that she did not have qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. In reaching this determination, the Board relied on a January 2010 response from the National Personnel Record Center (NPRC) that stated only that the appellant "has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United Sates Armed Forces." See January 2010 VA Form 21-3101. In relying on the January 2010 response from NPRC, the Board noted that a January 2016 Memorandum of Agreement (herein after referred to as "January 2016 MOA") between the Department of the Army and the National Archives and Record Administration (NARA) delegated the responsibility of verifying military service to the NPRC. In a May 2019 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) set aside the April 2017 Board decision. The Court remanded the current appeal for VA to either seek verification of the appellant's service from the Department of the Army, or for the Board to adequately explain whether the Army's duty to verify service was properly delegated to the NPRC in [January] 2010. The Board subsequently remanded this appeal in May 2020, February 2021, and July 2021 for additional development. In the most recent July 2021 decision, the Board found that a previous November 1998 MOA between the Department of the Army and NARA was applicable to the January 2010 verification of the appellant's service because there was no indication that the January 2016 MOA delegation of service verification to NPRC applied retroactively. See also Tagupa v. McDonald, 27 Vet. App. 95, 101 (2014) (holding that "[t]he ambiguous language of the [November 1998] MOA precludes the Court from finding that the Department of the Army delegated its duty to make administrative determinations verifying service to NARA, or its agency."). In relevant part, the July 2021 Board decision directed the agency of original jurisdiction (AOJ) to contact the pertinent authority, to include the Department of the Army, and request verification of the appellant's claimed qualifying service as a member of the Philippine Commonwealth Army, including as a recognized guerilla, in the service of the United States Armed Forces. The AOJ has substantially complied with previous Board remand instructions to obtain and associate with the claims file the November 1998 MOA and January 2016 MOA, as well as provide the appellant with a meaningful opportunity to challenge her service record with the relevant service department (in this case, the Army Board for Correction of Military Records (ABCMR)). However, the AOJ did not comply with the Board's July 2021 remand instruction to contact the pertinent authority, to include the Department of the Army, for verification of the appellant's claimed qualifying service as a member of the Philippine Commonwealth Army, including as a recognized guerilla, in the service of the United States Armed Forces. See also January 2016 MOA, paragraphs 5.a.(b) (NARA will, in cases where there are no records in the Philippine Army Files which indicate there has been a U.S. Army Determination concerning personnel status, forward the inquiry, along with research results, copies of responsive records and draft correspondence to The Adjutant General, U.S. Army Human Resources Command) and 5.b.(2). The Board sincerely regrets the additional delay, but finds remand is once again necessary to comply with the July 2021 Board remand instruction to request service verification from the pertinent authority, to specifically include the Department of the Army, if indicated. As the appeal is being remanded again, the appellant should be afforded another opportunity to submit additional information in support of her claim, to include evidence that she has or intends to apply to ABCMR for correction of her military record. The matters are REMANDED for the following action: 1. Contact the pertinent authority to request verification of the appellant's claimed service as a member of the Philippine Commonwealth Army, including as a recognized guerilla, in the service of the United States Armed Forces. The request should include all dates reported by the appellant for the claimed service and any unit in which the appellant claimed to have served. The pertinent authority should be provided copies of all relevant documents in the claims file, including those submitted by the appellant in support of her claim. In the event the Philippine Army Files maintained by NARA contain a favorable or unfavorable U.S. Army Determination concerning the appellant's personnel status, copies of responsive records should be obtained and associated with the claims file. In the event the Philippine Army Files maintained by NARA indicate a U.S. Army Determination concerning personnel status has not been made, NARA should forward the inquiry to the Adjutant General, U.S. Army Human Resources Command, along with research results and copies of records and draft correspondence, as indicated in the January 2016 MOA. Document all requests for information, as well as responses in the claims file. 2. Readjudicate the appeal. If the benefit sought on appeal remains denied, send the appellant and her attorney a supplemental statement of the case and inform the appellant of her appeal options. 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.