Veteranclaims’s Blog

January 9, 2015

Single Judge Application; Evidence of Service; Tagupa, __ Vet.App. at __, 2014 WL 4199213, at *6

Excerpt from decision below:

” If, however, the evidence of service submitted does not meet the requirements of 38 C.F.R. § 3.203(a), VA must request verification of service from the appropriate U.S. service department. 38 C.F.R. § 3.203(c); see Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008) (noting that § 3.203(c) requires verification from the service department whenever a claimant lacks the kind of official evidence specified in § 3.203(a)).
In Tagupa, the Court held that a request to the NPRC to verify a claimant’s service does not satisfy the Secretary’s duty under § 3.203. See Tagupa, __ Vet.App. at __, 2014 WL 4199213, at *6.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0806
TEOFILO M. MEDRANO, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN,Judge: AppellantTeofiloM. Medranoappeals, throughcounsel,anAugust
22,
2012, Board of Veterans’ Appeals (Board) decision that denied entitlement
to a one-time payment
from the Filipino VeteransEquityCompensation Fund(FVECF). Record of
Proceedings (R.) at 3-8.
This appeal is timely, and the Court has jurisdiction to review the
Board’s decision pursuant to
38 U.S.C. §§ 7252(a) and 7266(a). Both parties filed briefs, and the
appellant filed a reply brief.
Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990).
Forthe reasons thatfollow,theCourtwill reversetheBoard’s determination
thattheVeteransClaims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096, is
inapplicable to the
appellant’s claim; vacate the Board’s decision; and remand the matter for
further proceedings
consistent with this decision.
I. FACTS
On February 24, 2009, the appellant submitted a claim for compensation
from the FVECF.
R. at 102. The appellant reported that he performed recognized guerilla
service in unit “I Co 3rd Bn
44th Div Hunters ROTC” from October 15, 1945, to January 21, 1946. Id.

In June 2009, VA requested verification of the appellant’s service from
the National
Personnel Records Center (NPRC). R. at 101. The request for verification
indicated that the
appellant’s name “is listed in #24 file #68 of the
ReconstructedRecognizedGuerrillaRoster(RRGR)
maintained by [the] VA [regional office (RO),] Manila.” Id. Following a
September 2009 response
from the NPRC that the appellant had no service as a member of the
Philippine Commonwealth
Army, including the recognized guerillas, in the service of the U.S. Armed
Forces, the RO denied
his claim (R. at 100, 114-15), and the appellant filed a timely Notice of
Disagreement (NOD) (R. at
92-97).
With his NOD, the appellant submitted a “Certification from the Republic
of the
Philippines,” which stated that the appellant’s name was on the “Approved
Revised Reconstructed
G[ueril]la Roster of I Co 3d Bn 44th Div Hunters ROTC” (R. at 93); a
letter from the Philippine
Veterans Affairs Office certifying that the appellant’s “name is carried
in the Approved Revised
Reconstructed Guerilla Roster of 1948″ (R. at 94-95); and two affidavits,
one from Lamberto V.
Padua, and another from Alberto B. Torres, attesting that the appellant
was their superior in the
military and that each of them received a payment from the FVECF (R. at 96-
97).
In June 2010, VA issued a Statement of the Case that continued to deny
payment from the
FVECF. R. at 66-88. In October 2010, the appellant submitted his
Substantive Appeal (R. at 54-59)
with additional information certifying service: (1) An October 23, 1946, ”
Affidavit for Philippine
ArmyPersonnel,”reportingnumerousperiodsofservicefortheappellant,
includingMarch14,1945,
to September 30; and October 5, 1945, to January 21, 1946 (R. 60-63); and (
2) a certification from
the General Headquarters of the Armed Forces of the Philippines Office of
the Adjutant General,
indicating that the appellant served in the “Recog[nized] G[ueril]la,”
with October 15, 1943, as the
date of induction or enlistment, and October 5, 1945, as the date of
discharge (R. 64).
On March 20, 2012, the RO requested that the NPRC reverify the appellant’s
service and
included with the request the documents submitted by the appellant with
his NOD and Substantive
Appeal. R. at 49. One month later, the NPRC responded that the appellant
had no service as a
member of the Philippine Commonwealth Army, including the recognized
guerillas, in the service
of the U.S. Armed Forces. R. at 43.
2

In the August 22, 2012, decision on appeal, the Board stated that the
VCAA “redefined VA’s
duty to assist claimants in the development of a claim,” but found the
VCAA inapplicable in this
case because “resolution of the claim is wholly dependent on
interpretation of the applicable laws
and regulations pertaining to basic eligibility for VA benefits.” R. at 7-
8. Relying on the NPRC’s
certification that the appellant had no service as a member of the
Philippine Commonwealth Army,
including the recognized guerrillas, in the service of the U.S. Armed
Forces, the Board denied the
appellant’s claim. R. at 4. This appeal followed.
II. ANALYSIS
The appellant asserts that the Board clearly erred when it determined that
the VCAA was
“‘inapplicable and need not be considered in this case.'” Appellant’s
Brief (Br.) at 4-6 (quoting R. at
8). The appellant also asserts that the Board provided an inadequate
statement of reasons or bases
because the Board failed (1) to address whether VA fulfilled its duty to
assist, (2) to discuss the
importance of the appellant’s name in the RRGR, and (3) failed to explain
how verification from the
NPRC satisfies 38 C.F.R. § 3.203, which requires verification from the
service department. Id. at
7-12. The Secretary concedes that remand is warranted because VA did not
seek verification of
servicefromtherelevantservicedepartment. Secretary’s Br. at 4-8 (
citingTagupa v. McDonald, No.
11-3575, __ Vet.App. ___, ___, 2014 WL 4199213, at *6 (Aug. 26, 2014)).
The Secretarydoes not dispute the appellant’s remaining contentions.
Instead, he asserts that
the appellant can raise these arguments on remand. Id. at 8-9 (citing Mahl
v. Principi, 15 Vet.App.
37, 38 (2001) (per curiam order) and Best v. Prinicipi, 15 Vet.App. 18, 20 (
2001) (per curiam
order)). In his reply brief, the appellant argues that the Secretary’s
failure to address his arguments
should be deemed a concession of administrative error. Reply Br. at 1-2 (
citing MacWhorter v.
Derwinski, 2 Vet.App. 655, 657 (1992)). The appellant urges that in
addition to remanding the
matter for VA to seek verification from the relevant service department,
the Court should further
instruct VA to comply with its duty to assist by including the appropriate
details in the request for
verification. Id.; see also Appellant’s Br. at 8-9.
3

A. Verification of Service
Pursuant to the American Recovery and Reinvestment Act of 2009, Pub. L. No.
111-5,
§ 1002, 123 Stat. 115, Congress established the FVECF and authorized VA
to make one-time
payments from the fund to eligible persons who submitted a claim within
the one-year period
beginning on the date of enactment. Section 1002(d) of the Act defines ”
eligible person” as any
person who served before July 1, 1946, in the organized military forces of
the Government of the
Commonwealth of the Philippines, including the recognized guerrilla forces,
or in the Philippine
Scouts organized under section 14 of the Armed Forces Voluntary
Recruitment Act of 1945,
79 Cong. Ch. 393, 59 Stat. 538, 543.
To establish entitlement to benefits, VA may accept documents submitted by a claimant as evidence of qualifying service, without verification from the appropriate service department, if the documents were issued by a U.S. service department, contain the needed information, and in VA’s opinion are genuine and contain accurate information. 38 C.F.R. § 3.203(a) (2014). If, however, the evidence of service submitted does not meet the requirements of 38 C.F.R. § 3.203(a), VA must request verification of service from the appropriate U.S. service department. 38 C.F.R. § 3.203(c); see Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008) (noting that § 3.203(c) requires verification from the service department whenever a claimant lacks the kind of official evidence specified in § 3.203(a)).
In Tagupa, the Court held that a request to the NPRC to verify a claimant’s service does not satisfy the Secretary’s duty under § 3.203. See Tagupa, __ Vet.App. at __, 2014 WL 4199213, at *6.
Accordingly,theCourt remandedthematterforVAto seekverificationofMr.
Tagupa’s servicefrom
the Department of the Army. Id.
In light of the Court’s holding in Previous HitTagupaNext Hit, and given that the August 2012
Board decision in
this case relied on certifications from the NPRC to find that the
appellant does not have qualifying
service (R. at 4-7), the Court will vacate the Board’s decision and remand
the matter for VA to seek
verification of service from the appropriate service department.
B. The Appellant’s Remaining Contentions
Although the Court generally will not consider additional allegations of
error when the
remedy is no broader than a remand, see Mahl and Best, both supra, the
Court may address
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additional arguments to provide additional guidanceonremand. See Quirin v.
Shinseki, 22 Vet.App.
390,395(2009)(holding that, to provide guidanceto the Board, the Court
mayaddress anappellant’s
other arguments after determining that remand is warranted). Here, in
light of the additional
development that must take place on remand, the Court will address the
appellant’s argument that
the Board erred when it concluded that the VCAA is inapplicable and that
its decision is not
supported by an adequate statement of reasons or bases. Appellant’s Br. at
4-12.
Pursuant to the VCAA, the Secretary has a duty to assist claimants. See 38
U.S.C. § 5103A.
A “claimant” is “any individual applying for, or submitting a claim for,
any benefit under the laws
administered bythe Secretary.” 38 U.S.C. § 5100 (emphasis added).
Contraryto the Board’s finding,
it is well settled that, in addition to VA’s duty to seek verification
from the service department under
§ 3.203, VA also has a duty to assist a claimant in obtaining evidence
necessary to substantiate a
claim, including establishing veteran status. See Previous HitTagupaNext Document, __ Vet.App. at __
, 2014 WL 4199213, at
*6; Canlas v. Nicholson, 21 Vet.App. 312, 316 (2007); see also Capellan,
539 F.3d at 1381(holding
that veteran’s military service must be determined based on all relevant
evidence, “with due
application of the dutyto assist”). Accordingly, the Court will reverse
the Board’s determination that
the VCAA is inapplicable.
RegardingVA’s dutyto assist, the record shows that the RO sent two
requests for verification
to the NPRC. As determined above, these requests were insufficient to
satisfy VA’s duty under
§ 3.203. The appellant also argues, however, that the requests failed to
satisfy VA’s duty to assist
because the requests for verification omitted details and inaccurately
represented his service.
Appellant’s Br. at 8-9. Because the Board erroneouslyconcluded that the
VCAA is inapplicable, the
Board did not address whether VA satisfied its duty to assist under
section 5103(A)(a). This
determination is a finding of fact, which the Court may not make in the
first instance. See Hensley
v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that “appellate
tribunals are not appropriate
fora for initial fact finding”); Hyatt v. Nicholson, 21 Vet.App. 390, 395 (
2007) (the Board’s
determination that VA has satisfied the duty to assist is a finding of
fact reviewed under the “clearly
erroneous”standard of review); see also 38 U.S.C. § 7261(c). On remand,
the Board must determine
whether the requests to the NPRC included all relevant details and an
accurate history of the
appellant’s service, and provide an adequate statement of reasons or bases
for its determination. See
5

38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995) (
Board must include a written
statement of the reasons or bases for its findings and conclusions on all
material issues of fact and
law presented on the record adequate to enable an appellant to understand
the precise basis for the
Board’s decision, and to facilitate informed review in this Court). The
Board must also consider
whether, in addition to seeking verification from the relevant service
department, further
development is required to satisfy VA’s duty to assist under section 5103A(
a).
In pursuing the matter on remand, the appellant is free to submit
additional evidence and
argument on the remanded matter, and the Board is required to consider any
such relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to
benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
“[a] remand is meant to entail a critical examination of the justification
for the decision.” Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
with 38 U.S.C. § 7112 (requiring Secretary to provide for “expeditious
treatment” of claims
remanded by the Court).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the Board’s August 22, 2012, decision is REVERSED as to the
finding that the VCAA is
inapplicable to the appellant’s claim. The Board’s decision is VACATED and
the matter is
REMANDED for further proceedings consistent with this decision.
DATED: December 22, 2014
Copies to:
Jeany C. Mark, Esq.
VA General Counsel (027)
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