92 Decision Citation: BVA 92-20683 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-55 422 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for arthritis, peptic ulcer, prostatic hypertrophy and chronic gastritis. 2. Whether the veteran has prisoner-of-war service between 1942 and 1943 for Department of Veterans Affairs (VA) benefits purposes. ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The veteran had recognized World War II service. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 1990 and subsequent rating decisions from the Manila, Republic of the Philippines, Regional Office (hereinafter RO). The August 1990 rating decision denied service connection for arthritis, peptic ulcer, prostatic hypertrophy and gastritis. The decision noted that, since the veteran had no verified status as a former prisoner of war, the presumptive provisions of Public Laws 97-37 and 100-322 did not apply. The notice of disagreement was received in November 1990. The statement of the case was issued in November 1991. The substantive appeal was received in January 1992. The appeal was received and docketed at the Board in February 1992. The veteran has represented himself throughout his appeal. REMAND In the substantive appeal received in January 1992, the veteran stated that he was withdrawing his claim for service connection for arthritis, peptic ulcer disease, prostatic hypertrophy and chronic gastritis, but was continuing to appeal for benefits under Public Laws 97-37 and 100-322. However, those laws do not directly provide benefits. They establish presumptions for former prisoners of war for service connection for certain disabilities, including some types of arthritis, peptic ulcer disease, and residuals of malnutrition. Consequently, there is some question as to whether the veteran actually intended to withdraw his claims for service connection. This should be clarified. The RO should determine what disabilities the veteran is seeking benefits for. The record contains several statements from witnesses, to the effect that they served with the veteran in the same unit, and/or while they were held prisoners of war. The record does not show why the RO did not accept these statements. The RO should determine the credibility of the witnesses. Sufficient development to determine the credibility should be accomplished, including verifying the alleged units and prisoner-of-war status of the witnesses. An October 1971 certification from the Armed Forces of the Philippines shows that the veteran was a prisoner of war from May 1942 to January 1943, and was paid for serving during that period. The RO should make a determination as to the authenticity of this certification and, if necessary, make any investigation to determine its worthiness. The United States Government service department has not certified the veteran's prisoner-of-war service. Department of Veterans Affairs (VA) Manual M21-1, Part IV, Paragraph 34.05(c), provides that, if the VA has obtained information deemed reliable which conflicts with information relating to service obtained from the service department, such information should be brought to the attention of the United States Army Reserve Components Personnel and Administration Center (AGUZ-SAD), 9700 Page Boulevard, St. Louis, MO 63132 for reconsideration. This should be done. The RO only has authority to accept the finding of the service department that the veteran was a prisoner of war. The RO does not have authority to deny prisoner-of-war status or allow it on any other basis. Those determinations must be made at VA Central Office. Consequently, if the service department does not determine that the veteran was a prisoner of war, the case must be referred to VA Central Office. 38 C.F.R. § 3.1(y)(1), (3) (1991). The veteran should be given an opportunity to show that he has the disabilities for which he is seeking benefits and to submit evidence of a continuity of symptomatology. Therefore, he should be asked to provide additional information and to report for a VA examination. In view of the foregoing, the case is REMANDED for the following: 1. The RO should evaluate the credibility of the witnesses which have provided statements on the veteran's behalf. This evaluation must be based on evidence of record. To make the credibility determination, the RO should make an investigation, if it becomes necessary. This would include, but not be limited to, verifying the prisoner-of-war status and the units of service of the witnesses. 2. The RO should determine the basis for the October 1971 certification from the Armed Forces of the Philippines and assess the authenticity and worthiness of that certification. Any required development or investigation deemed appropriate should be conducted. 3. The RO should ask the United States Government service department to verify if, when, and where the veteran's unit surrendered and where its members were subsequently taken. 4. The RO should request pertinent prisoner-of-war records from the Military Reference Branch, National Archives, Washington, D.C. 20408. See VA Manual M21-1, Part III, Paragraph 4.16(a)(3). 5. After the above development has been accomplished, the service department should be asked to make a redetermination as to the veteran's prisoner-of-war status. See VA Manual M21-1, Part IV, Paragraph 34.05(c). 6. If the service department does not determine that the veteran was a prisoner of war, the RO shall make a determination as to the veteran's prisoner-of-war status and forward that determination to the Director of the Compensation and Pension Service, VA Central Office, for approval in accordance with the above manual provisions. 6 If the prisoner-of-war status of the veteran is established, he should be asked to specify the disabilities for which he is seeking benefits and he should be examined to determine whether or not the claimed disabilities are present. Following completion of these actions, the RO should review the evidence and determine whether the claim may now be granted. If not, the veteran should be provided with a supplemental statement of the case and afforded a reasonable period in which to respond. Thereafter, in accordance with current appellate procedure, the case should be returned to this Board for further appellate consideration. No action is required of the veteran until he receives further notice. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * W. H. YEAGER, JR., M.D. (MEMBER TEMPORARILY ABSENT) JOAQUIN AGUAYO-PERELES *38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. Under 38 U.S.C. § 7252 (1992), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.