Abdon v. Wilkie

• Decision Date: 29 June 2020
• Docket Number: 18-4132
• Court: United States Court of Appeals For Veterans Claims
• Parties: Felicisima P. Abdon, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

Felicisima P. Abdon, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 18-4132

United States Court of Appeals For Veterans Claims

June 29, 2020

Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

Felicisima P. Abdon VA General Counsel.

Before ALLEN, Judge.

MEMORANDUM DECISION

ALLEN JUDGE.

Self-represented appellant Felicisima P. Abdon, surviving spouse of Cresencio Abdon, seeks VA benefits based on Mr. Abdon's military service in the Philippines. In this appeal, which is timely and over which the Court has jurisdiction, ^[1] she contests a June 19, 2018, Board of Veterans' Appeals decision that denied entitlement to VA death benefits because the service department has not verified that appellant's spouse had military service in the United States Armed Forces.^[2] Because the Board failed to provide adequate reasons or bases for its decision, we will set aside its June 19, 2018, decision and remand this matter for further proceedings.

I. PROCEDURAL MATTERS

In Dela Cruz v. Wilkie, the Federal Circuit held that for claims based on Philippine service in World War II, "VA can properly rely on the Army's certification as to service, but it 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."^[3] Moreover, the Federal Circuit stated that because the Government represented that it would consider requests for correction by individuals who are not listed on the reconstructed roster, the proper course of action would be for the Court to hold an appeal in this Court in abeyance pending consideration by the Army Board of Correction for Military Records (Correction Board).^[4]

To comply with Dela Cruz, the Court stayed proceedings in this matter and twice ordered appellant to report whether she will seek correction of her spouse's service records with the Correction Board and to submit evidence of such a request. On December 4, 2019, the Court issued its first order, providing appellant 90 days to report whether she will seek correction of her spouse's service records with the Correction Board and whether she had applied with the appropriate service department. The Court also explained that if she challenged his service record, the Court would hold the matter in abeyance pending consideration by the Correction Board, but if she decided not to challenge his service record, it would adjudicate the matter in the normal course.

On March 10, 2020, appellant responded to the Court's December 2019 order. Her response was entitled "Petition for the Correction of Military Records."^[5] She explained that she was "seeking the correction of the records of her husband with [VA]."^[6] She stated that her husband had already submitted documents evidencing his service as a member of the Phillippine Commonwealth Army of the United States Armed Forces for the Far East (USAFFE).^[7] And she explained that

prior to the filing of this correction of military records, [her husband] was already applying for his recognition as a [veteran] but records with the Service Office has no records as to his name . . . thus, correction to challenge the records of the Military Service because as per the records of [her husband] he had worked as USAFFE, attached are the copies of his records as Annex "A" services. ^[8]

Despite appellant's statement, no attachments were submitted with her response.

Because appellant's response was not clear as to whether she had adequately applied for a correction of military records, the Court issued a second order on March 19, 2020. The Court provided appellant an additional 90 days to explain whether she was seeking correction of her spouse's service records and whether she had filed the appropriate application. To alleviate any confusion about the process of seeking to correct military records from the Correction Board, the Court explained to appellant that the Court was not the proper venue to seek correction and informed her as to what form she needed to submit and where she needed to send it. Appellant did not respond to the Court's order.

The Court believes that because it provided appellant a meaningful opportunity to challenge her spouse's service records, holding the matter in abeyance in accordance with Dela Cruz would not be beneficial because it may remain in abeyance for perpetuity. Therefore, the Court will adjudicate the matter in the normal course.

II. ANALYSIS

According to our liberal construction of her brief, appellant argues that the Board erred by failing to recognize her late husband as a veteran of the USAFFE.^[9] The Secretary asserts that the Court should affirm the Board's decision because it is correct as a matter of law.

To qualify for VA benefits, a claimant must demonstrate that they are a "veteran."^[10]"Veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service."^[11] Service in the active military, naval, or air service includes, in certain circumstances, service in the Commonwealth Army of the Philippines, including certain organized guerrilla forces who were called into service of the U.S. Armed Forces.^[12]

VA regulations provide that certain types of documents may be used to establish qualifying service.^[13] 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.^[14]

If, however, the evidence of service does not meet the requirements of § 3.203(a), VA must request verification of service from the appropriate U.S. service department.^[15] Once the service department determines whether an individual had qualifying service, its determination is "conclusive and binding" on VA.^[16]

In its decision, the Board explained in two terse paragraphs that VA sought verification of appellant's spouse's records twice with the service department.^[17] Both responses were negative. Because a U.S. service department did not certify appellant's spouse's service with the USAFFE, the Board explained that it had "no choice but to find that there is no qualifying service upon which the appellant's claim is based."^[18] The Board therefore denied appellant's claim as a matter of law.

A review of the record, however, reveals a factual inconsistency that the Board failed to address. In 2012, the response to the first request for verification of service noted that "[s]ubject's name [is] not listed in the Reconstructed Recognized Guerilla Roster (RRGR) maintained by [the VA regional office (VARO) in Manila]."^[19] However, in 2016, the response to the second request for verification noted that "[s]ubject's name is also listed in the page 6 file # 285 of the [RRGR] maintained by VARO Manila."^[20] The Board should have addressed these contradictory findings before rendering its adverse determination.^[21] In Dela Cruz, the Federal Circuit explained that "[t]o verify service of a Filipino Guerilla, the Army relies on the reconstructed roster and treats the roster as authoritative."^[22] If it was determined that appellant's spouse's name was listed in the RRGR, the Board should have explained why this fact was not enough for the service department to verify service or it should have at least sought clarification. Because the Board failed to account for these factual discrepancies, its reasons or bases are inadequate and the Court concludes that remand is warranted.^[23]

On remand, the Board should also clarify the explanation received by the National Personnel Records Center (NPRC) in response to the second verification request. In that response, NPRC noted that appellant's spouse's name was found in the index files, "but they did not list a G Company, 2nd Battalion, 33rd Infantry, as unit of assignment. The index files pointed to 4th REPL BN (PA) special order, #54 which indicates placement into inactive status as of February 25, 1946." ^[24] Appellant's spouse's name apparently was listed under a different unit of assignment, but NPRC did not make clear why evidence of service in that unit was not sufficient to verify service. Also on remand, when it reassesses whether appellant's spouse had qualifying service, the Board should address and ensure compliance with Tagupa.

Finally, on remand, appellant may submit additional evidence and argument and has 90 days to do so from the date of VA's postremand notice.^[25] The Board must consider any such additional evidence or argument submitted.^[26] The Board must also proceed expeditiously.^[27]

III. CONCLUSION

After consideration of the parties' briefs, the governing law, and the record, the Court SETS ASIDE the June 19, 2018, Board decision and REMANDS this matter for further proceedings consistent with this decision.

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Notes:

^[1] See 38 U.S.C. §§ 7252(a), 7266(a).

^[2] R. at 3-6.

^[3] 931 F.3d 1143, 1152 (Fed. Cir. 2019).

^[4] Id. at 1153.

^[5] Appellant's Response (Resp.) at 1.

^[6] Id.

^[7] Id.

^[8] Appellant's Resp. at 2.

^[9] See De Perez v. Derwinksi, 2 Vet.App. 85, 86 (1992).

^[10] Cropper v. Brown, 6 Vet.App. 450, 452 (1994).

^[11] 38 U.S.C. § 101(2); see 38 C.F.R. § 3.1(d) (2019).

^[12] See 38 U.S.C. § 101(2); 38 C.F.R. § 3.40 (2019); see also 38 U.S.C. § 107.

^[13] 38 C.F.R. § 3.203(a) (2019).

^[14] Id.

^[15] 38 C.F.R. § 3.203(c); see Capellan v. Peake, 539 F.3d...