Capellan v. Peake

• Decision Date: 02 September 2008
• Docket Number: No. 2007-7236.,2007-7236.
• Parties: Fortunata CAPELLAN, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

539 F.3d 1373

Fortunata CAPELLAN, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.

No. 2007-7236.

United States Court of Appeals, Federal Circuit.

September 2, 2008.

Fortunata Capellan, of Lopez, Quezon, Philippines, pro se.

Douglas K. Mickle, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Jamie L. Mueller, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, MAYER, and SCHALL, Circuit Judges.

Opinion for the court filed by Circuit Judge NEWMAN. Concurring opinion filed by Circuit Judge SCHALL.

NEWMAN, Circuit Judge.

This appeal centers on the attempt of Fortunata Capellan to establish that her husband, Santiago A. Capellan, was killed in the Battle of Bataan in 1942 while in the Armed Forces of the Philippines in the service of the United States Armed Forces. His body was never recovered. Mrs. Capellan's claim is founded on 38 U.S.C. § 107, which provides certain veterans benefits to members of the Philippine military services who were incorporated into the United States Armed Forces. See 38 C.F.R. § 3.40.

After the war Mrs. Capellan applied for veterans' benefits based on her husband's service. The application was granted and Mrs. Capellan received benefits for several months in 1950 until they were terminated in August of that year. This appeal is from the most recent denial of her claim for dependency and indemnity compensation, by decision of the United States Court of Appeals for Veterans Claims (the "Veterans Court"). The Veterans Court held that Mr. Capellan's military service had not been established by an official United States military document or verified by a United States service department pursuant to 38 C.F.R. § 3.203, and declined to consider the new evidence from Philippine military authorities.¹ In its ruling the Veterans Court appears to have diverged from other decisions concerning verification of Philippine military service when new information was provided after an earlier adverse determination. See, e.g., Padilla v. Nicholson, No. 05-2518, 2007 WL 412356, at *2 (Vet.App. Jan.3, 2007) (requiring review of new information); Dela Cruz v. Nicholson, No. 04-137, 2005 WL 3057877, at *3 -*4 (Vet.App. Oct.21, 2005) (requiring review of new information).

At the threshold, the government challenges our jurisdiction of this appeal.

Jurisdiction

Pursuant to 38 U.S.C. § 7292(a), as amended in 2002, this court has appellate authority "with respect to the validity of a decision of the [Veterans Court] on a rule of law or of any statute or regulation . . . or any interpretation thereof . . . that was relied on by the Court in making the decision." However, except to the extent that an appeal presents a constitutional issue, this court "may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case." 38 U.S.C. § 7292(d)(2). The 2002 amendment to § 7292(a) enlarged our jurisdiction beyond issues of the validity or interpretation of a statute or regulation, to include review of any legal principle and its interpretation. See Morgan v. Principi, 327 F.3d 1357, 1361 (Fed.Cir.2003) ("[T]he amendment enacted by Congress has the effect of making the review of `a decision of the Court [of Appeals for Veterans Claims] on a rule of law' a separate jurisdictional basis, and textually independent of whether that rule of law was `relied on' . . . ."); see also Wilson v. Principi, 391 F.3d 1203, 1209 (Fed.Cir.2004) ("We have interpreted the revised statute as conferring on this court a form of `case jurisdiction,' as opposed to `issue jurisdiction.'").

The Secretary of Veterans Affairs (herein "the VA") argues that this court does not have jurisdiction to consider any aspect of this appeal, stating that Mrs. Capellan is simply seeking review of a factual determination concerning Mr. Capellan's military service. Mrs. Capellan argues that the decision of the Veterans Court was based on an incorrect interpretation of certain statutes and regulations. The issues she raises primarily concern 38 C.F.R. § 3.203, a VA regulation that relates to evidence of military service and that states the procedures to be followed by claimants and by the VA in collaboration with the military services. Mrs. Capellan argues that this regulation was incorrectly interpreted in view of the VA's statutory duty to assist, 38 U.S.C. § 5103A, and the benefit-of-the-doubt statute applicable to veterans' claims, 38 U.S.C. § 5107(b).

We conclude that the jurisdictional requirements of § 7292 are met. See Alpough v. Nicholson, 490 F.3d 1352, 1358 (Fed.Cir.2007) (accepting jurisdiction where the Veterans Court relied on erroneous interpretations of 38 U.S.C. § 101(3) and 38 C.F.R. § 3.53(b) in rejecting surviving spouse's claim for benefits); Wilson, 391 F.3d at 1211 (accepting jurisdiction and remanding for reapplication of EAJA in light of statutory change and intervening precedent). We thus accept jurisdiction, and remand for reapplication of the relevant statutory and regulatory provisions, consistent with this opinion.

BACKGROUND

Before and during World War II the Commonwealth of the Philippines was a territory of the United States.² On July 26, 1941 President Roosevelt placed the military forces of the Philippines in the service of the United States Armed Forces in the Far East (USAFFE). See Military Order, 6 Fed.Reg. 3825 (July 26, 1941). The United States duly provided that members of the Philippine military forces who fought the Japanese invasion, or Philippine persons who fought as guerrillas during the Japanese occupation, and their survivors, were eligible for certain benefits from the United States. See 38 U.S.C. § 107(a) (defining Philippine service qualifying for certain benefits, including dependency and indemnity compensation for a surviving spouse pursuant to chapter 13 of title 38); 38 C.F.R. §§ 3.40, 3.41 (specifying types of Philippine service qualifying for dependency and indemnity compensation benefits).

After the war Mrs. Capellan filed a claim for death pension and other benefits based on her husband's military service and his death at Bataan. A United States Army Report dated August 2, 1948 states that the Army confirmed that Santiago A. Capellan served in the military service of the United States through the Philippine Commonwealth Army, that his service began on December 23, 1941, and that he was killed in action on February 28, 1942 during the battle for Bataan. The Report states that Mr. Capellan was a private in "B" Company, 1st Battalion, 1st Infantry Regiment, and that three affidavits pertaining to his military service were attached. On August 17, 1950 the Army issued another Report, stating that Mr. Capellan "has no recognized guerrilla service nor was he a member of the Commonwealth Army in the service of the Armed Forces of the United States." The 1950 Report does not explain the change from the 1948 Report, although it refers to a separate "loyalty report" on Mr. Capellan's father which is not included in the record. Mrs. Capellan briefly received benefits from the VA but they were terminated in 1950.

The activity relevant to this appeal is focused on documentation from the Philippine military authorities that Mrs. Capellan received in 1997 with respect to her husband's service and death at Bataan. A document dated December 9, 1997, signed by Records Officer Romeo L. Soriben and Captain Narciso S. Erna, Assistant Adjutant General of the Armed Forces of the Philippines, certified that Private Santiago Capellan served in the "B Co 1st Bn 1st Regt," and described his service as:

Beleaguered status fr 19 Dec 41 to 28 Fed 42; Died at Bagac, Bataan Phils on 28 Fed 42; Termination of casualty status on 23 Oct 44 (RPD dtd 20 Nov 47)

Admin. Rec. at 15. Mrs. Capellan also received a certification of the records of the Armed Forces of the Philippines dated December 3, 1997 and signed by Captain Narciso Erna, which recorded payments made in arrears for Mr. Capellan's service

while a member of the Commonwealth Army of the Philippines in the service of the USAFFE/GRLA.

Admin. Rec. at 16. These documents were submitted in January 1998 to the VA Regional Office in Manila. In October 1999 the Regional Office wrote Mrs. Capellan that it was unable to locate the relevant claims files and requested additional information. The Regional Office letter stated:

So that proper adjudicative action may be taken on your claim, you must furnish the following:

• VA Form 21-534. Please fill out every blank which applies to you.

• VA Form 21-4138. Please explain why your benefits were terminated in July 1950.

• Copies of Notices of Award and Disallowance to include all available previous VA correspondence.

• A copy of the veteran's death certificate.

• A copy of your marriage certificate.

Admin. Rec. at 24. Mrs. Capellan responded in December 1999, providing both requested VA forms and stating that she had not received a death certificate because her husband's "body was unrecovered and no document was issued to us by proper authorities. I hope that this military service record will serve as his death certificate." She included a copy of her marriage certificate, and explained that her copies of the Notices of Awards and Disallowances were misplaced or lost and could not be provided. She explained that Mr. Capellan's father had received a letter from the VA in July 1950 asking for Mr. Capellan's military service record but that "[w]e were not able to submit the document needed because of improper guidance," and referred to a February...