Citation Nr: 22012121 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-23 642 DATE: March 2, 2022 REMANDED Entitlement to U.S. Department of Veterans Affairs (VA) death benefits, to include service-connected death benefits, death pension, and accrued benefits, is remanded. REASONS FOR REMAND In this case, the appellant's spouse passed away in July 2009. The appellant asserts that her spouse had qualifying service in the Philippine Army during World War II, to include status as a former prisoner of war (POW), which would entitle her to VA benefits. This matter comes before the Board of Veterans' Appeals (Board) from an August 2016 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant requested a Board hearing in her substantive appeal received in April 2017. She withdrew her hearing request in September 2017. Accordingly, the hearing request is withdrawn. See 38 C.F.R. § 20.704 (e). Entitlement to U.S. Department of Veterans Affairs (VA) death benefits, to include service-connected death benefits, death pension, and accrued benefits, is remanded. The Board regrets the additional delay, but remand is necessary in order to afford an opportunity for the Appellant to correct her husband's military record with the United States Army. In this case, the appellant seeks entitlement to U.S. Department of Veterans Affairs (VA) death benefits, to include service-connected death benefits, death pension, and accrued benefits. The surviving spouse of a deceased veteran may be eligible for DIC benefits or other death benefits, including nonservice-connected death pension benefits and accrued benefits. 38 U.S.C. §§ 1310. In order to qualify for such benefits, "the party upon whose service the claimant predicates the claim... [must be] a 'veteran.'" Cropper v. Brown, 6 Vet. App. 450, 452 (1994); see D'Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000). A veteran is defined as a "person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). Service in the active military, naval, or air service includes service in the United States Armed Forces or, for certain purposes, service in the organized military forces or organized guerilla forces of the Government of the Commonwealth of the Philippines in the service of the U.S. Armed Forces. See 38 U.S.C. §§ 101 (10), 101(21)(c), 101(24), 107; 38 C.F.R. § 3.40. Additionally, the term former POW for VA purposes means a person who, while serving in the active military, naval, or air service, was forcibly detained or interned in line of duty by an enemy or foreign government, the agents of either, or a hostile force. 38 U.S.C. § 101(32); 38 C.F.R. § 3.1(y). During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East (USAFFE) by an order of President Franklin D. Roosevelt. Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that many of those who served in the Philippine Islands during World War II did not have qualifying active service for the purpose of receiving VA benefits. 38 U.S.C. § 107. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); 38 C.F.R. § 3.203 (c). Claimants applying for benefits establish service in one of two ways: (1) by submitting a document issued by the service department, or (2) the VA will request verification of service form the service department. 38 C.F.R. § 3.203(a), (c). Additionally, in relation to the appellant's assertion that her spouse was a former POW, VA shall accept the findings of the appropriate service department that a person was a POW during a period of war. 38 C.F.R. § 3.1(y)(1). The service department's decision on such matters is conclusive and binding on VA, regardless of whatever other evidence documenting service the claimant provides to VA. Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). For claims based on Philippine service in World War II, the Army relies on the reconstructed roster that was completed in 1948 to verify service. In this case, the appellant's spouse was not listed on an approved unit roster, and his service in support of the United States Army Forces in the Far East (USAFFE) could not be authenticated. See September 16, 2010, March 7, 2010, and November 27, 2009 responses from the National Personnel Records Center (NPRC); see also June 2016 and July 2016 response from NPRC. Additionally, NPRC found no evidence of a claim with the War Claims Commission (WCC) to verify whether the appellant's spouse acquired POW status. See September 2016 response from NPRC. In Soria, the Federal Circuit held that if the service department's refusal to verify service is in error, the proper recourse lies within the relevant service department (in this case, the Army), not the VA. Soria, 118 F.3d at 749; see also Go v. Shinseki, 517 F. Appx 941, 942 (Fed. Cir. 2013). If a claimant has not had the opportunity to challenge inclusion in the Army's reconstructed roster, however, the Federal Circuit has 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 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 Filipino Veterans Equity Compensation 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, the appellant provided multiple documents pertaining to her husband's military service, but it does not appear that she attempted to correct the record with the Department of the Army. Relevant documentation includes a certificate noting an honorable discharge from the Philippine Army, a Certification from the Adjutant General of the Armed Forces of the Philippines, dated September 1997, documenting that the appellant's husband served as a guerilla, with A Company, 2nd Battalion, 108th Division; his date of recognition was March 15, 1943; he was paid arrears in pay as a private from March 1, 1943 to April 16, 1945; and he was paid his current pay as a private from April 17, 1943, to July 31, 1945. However, it does not appear that the appellant has filed a request through the Army Board for Correction of Military Records to have her spouse's service recognized by the Army. On remand, the appellant should be afforded an opportunity to provide such documents to the Army Board for Correction of Military Records in support of an application to correct her spouse's military service and challenged his exclusion from the reconstructed roster. This 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 Form 23 affidavit and the other available evidence 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, 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. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.