Citation Nr: 23005243 Decision Date: 01/26/23 Archive Date: 01/26/23 DOCKET NO. 18-22 577 DATE: January 26, 2023 REMAND Entitlement to Department of Veterans Affairs (VA) benefits, including the threshold question of whether the appellant's father qualifies as a Veteran for VA compensation purposes, is remanded. REASONS AND BASES FOR REMAND This claim comes before the Board of Veterans' Appeals (Board) on appeal of a November 2017 VA Administrative Decision. The appellant is the daughter of [REDACTED], now deceased, and her sister, [REDACTED], has Special Power of Attorney to bring this claim to the Board on her behalf. The appellant has been mentally disabled since childhood. On multiple occasions since 2005, her sister has attempted to seek VA benefits on her behalf based on their deceased father's Philippine service from June 1942 to January 1946, allegedly as a recognized guerrilla in the Philippine Scouts, considered part of the Armed Forces of the United States. The Agency of Original Jurisdiction (AOJ) has consistently denied the claims, characterized to include entitlement to Dependency and Indemnity Compensation (DIC), death pension, accrued and helpless child benefits, on the basis that the father had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, and, therefore, may not be considered a "veteran" for VA purposes. The claim was remanded by the Board in June 2019. The Board directed the AOJ to exhaust all avenues of development to verify the appellant's father's service, including by contacting the appropriate service department and any other alternative record sources. The AOJ was further directed to provide copies of documentation submitted by appellant (which will be discussed further below), to any record sources contacted. The term "veteran" is defined in 38 U.S.C. § 101 (2) 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. 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). Service prior to July 1, 1946, in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines in the service of the U.S. Armed Forces (including recognized guerrilla service) is qualifying service for compensation, dependency and indemnity compensation, and burial allowance. However, such is not qualifying service for nonservice-connected pension (to include death pension) benefits. 38 U.S.C. § 107; 38 C.F.R. §§ 3.40, 3.41. 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). Following World War II, a reconstructed roster of recognized guerilla members and units was compiled. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. Id. at 749. 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). 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). Instead, 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). VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department, if the evidence meets the following conditions: (1) the copy of an original document was issued by the service department or was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; (2) the document contains needed information as to length, time, and character of service; and (3) in the opinion of VA, the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203 (a). The appellant, through her legal guardian-sister, has provided several documents and information in an effort to prove her father's service. There is a document titled Certificate in Lieu of Lost or Destroyed Discharge showing that the appellant's father served in the United States Army; a document titled Certificate of Military Service showing the appellant's father was a member of the Philippine Scouts from June 1942 to December 1945 with an honorable discharge; and two additional documents showing the appellant's service. In 2005, a notarized affidavit from the appellant's father's commander in service was submitted, verifying that the appellant's father had served. However, because there is no evidence that these documents were issued by a service department or by a public custodian of records certifying the true nature of these copies, the Board cannot accept these documents as evidence of service. When a claimant does not submit evidence that meets the requirements of 38 C.F.R. § 3.203 (a), VA shall request verification from the service department. In a June 2021 letter, the AOJ listed the attempts made to verify the appellant's father's service. In October 2016, a letter from the General Headquarters of the Armed Forces of the Philippines, Office of the Adjutant General stated no records were available certifying the military service of the appellant's father. In November 2016, the AOJ requested a copy of the appellant's father's PA AGO Form 23 Affidavit for Philippine Army Personnel to assist in verifying service, but such was not submitted by the appellant. In June 2017, a response from NPRC stated that the appellant's father had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. In April 2020, the AOJ again requested a PA AGO Form 23 as well as NA Form 13075 Questionnaire about Military Service, but such was not submitted by the appellant. In June 2021, NPRC stated that no records could be identified based on the information provided. In accordance with the June 2019 remand, the AOJ submitted a request to NPRC requesting any evidence of service either in the USAFFE or guerilla service in the "SGT-INF, Hq & Hq Co., 3rd Bn, 3rd reg't, 121st Inf(PS)USAFIP." The AOJ enclosed copies of the uncertified documents submitted by the appellant. A May 2022 VA Form 21-3101 Request for Information states that the appellant's father's name is not listed in the Reconstructed Recognized Guerilla Roster (RRGR) maintained by VARO Manila. In September 2021, the NPRC (as the agent of the National Archives and Records Administration (NARA)) again responded to the request for verification of the appellant's service. See also January 2016 Memorandum of Agreement (MOA) between the Department of the Army and NARA (delegating the responsibility of verifying military service to NARA). NPRC reported that unit rosters corresponding to the information submitted by the appellant did not include the appellant's father's name among the list of soldiers whose service in support of the United States Armed Forces was verified. In September 2022, NPRC sent another letter, stating that a claims folder had been located. Curiously, this is in contrast to its September 2021 letter stating that a claims folder had not been located. However, both letters stated that the corresponding unit rosters did not include the appellant's father's name. Since the June 2019 Board remand, the Dela Cruz case, supra, was decided, requiring VA to give the appellant the opportunity to challenge the service department's findings before the Army Board for Corrections of Military Records before the Board can issue a final denial of the claim. The court in Dela Cruz noted that VA has received representations from the Department of the Army that the Army Board for Correction of Military Records will consider applications filed by purported Filipino Guerillas claiming military service during World War II on behalf of the United States Army; however, the Corrections Board will only consider such an application for correction after the applicant exhausts all other available administrative remedies, including requesting verification of military service from NPRC and the Army Human Resources Command (AHRC). As the NPRC remedy has already been exhausted, the AHRC remedy must first be pursued before going to the Corrections Board. Accordingly, this case must be remanded to afford the appellant the opportunity to contact the AHRC and the Army Board for Correction of Military Records to challenge the NPRC's findings. The matter is REMANDED for the following action: 1. Provide the appellant with all the necessary information in order to apply for a correction of her father's military record with the Army Human Resources Command (AHRC) and the Army Board for Correction of Military Records. Include the proper address(es) for mailing or filing, the documentation required to support her application, as well as any other pertinent information. (Continued on the next page) 2. Once a reasonable time period (no less than six months) 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. R. COSTELLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.