Gayudan v. Wilkie, 17-3085
| Decision Date | 21 May 2019 |
| Docket Number | 17-3085 |
| Parties | Paula C. Gayudan, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Paula C. Gayudan General Counsel.
Before BARTLEY, Judge.
Self-represented appellant Paula C. Gayudan appeals an April 28, 2017, Board of Veterans' Appeals (Board) decision that denied basic eligibility for VA disability benefits. Record (R.) at 2-8. For the reasons that follow, the Court will set aside the April 2017 Board decision and remand the matter for readjudication consistent with this decision.
In May 2009, Ms. Gayudan filed an application for compensation under the Filipino Veterans Equity Compensation Fund, asserting that she served in the Walter Cushing Guerrillas from October 1942 to November 1945. R. at 130, 133. In December 2009, the Manila regional office (RO) sought verification of Ms Gayudan's service from the National Personnel Records Center (NPRC).[1] R. at 127. In February 2010, the NPRC responded, indicating that Ms. Gayudan "has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces." R. at 126. As a result, in April 2010, the RO denied Ms. Gayudan's compensation application. R. at 123-24.
In March 2016, Ms. Gayudan again sought disability compensation, specifically for tuberculosis, hypertension, and ulcers. R. at 89-92. In June 2016, the RO denied the claims, indicating that NPRC was unable to verify her service in the Commonwealth Army of the Philippines, which included service with recognized guerrillas. R. at 66-68. In September 2016, Ms. Gayudan filed a Notice of Disagreement, R. at 62, and, following a November 2016 Statement of the Case, R. at 30-56, she perfected an appeal to the Board in January 2017, R. at 25-27.
In the April 2017 decision on appeal, the Board found that Ms. Gayudan did not have qualifying service as a member of the Philippine Commonwealth Army and, therefore, was not eligible for VA benefits. R. at 3. In reaching that determination, the Board noted that, although VA is required to seek verification of service from the relevant service department (in this case, the Army), a January 2016 memorandum of agreement (MOA) delegated the responsibility of verifying military service to the NPRC. R. at 5. The Board then noted NPRC's January 2010 response to the RO, indicating that Ms. Gayudan had no service as a member of the Philippine Commonwealth Army, and noted that NPRC's finding was binding on the Board. R. at 6-7. This appeal followed.
Ms. Gayudan's appeal is timely and the Court has jurisdiction to review the April 2017 Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The determination of veteran status is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. See Struck v. Brown, 9 Vet.App. 145, 152 (1996), abrogated on other grounds by Gardner v. Shinseki, 22 Vet.App. 415 (2009); see also 38 U.S.C. § 7261(a)(4). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The Board must support its material determinations of fact and law with adequate reasons or bases. 38 U.S.C. § 7104(d)(1); Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of evidence, account for evidence it finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Under a liberal construction of her brief, see De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992), Ms. Gayudan argues that the Board erred in denying her entitlement to VA benefits when it failed to appropriately consider documentation submitted in support of the appeal, which she contends clearly document her service in the Walter Cushing Guerrillas. Attachment to Appellant's Informal Brief (Br.) at 1-3. The Secretary concedes that remand of the appeal is warranted, as the Board failed to provide adequate reasons or bases for its adverse determination. Secretary's Br. at 3-6.
To qualify for VA benefits, a claimant must demonstrate that she is a "veteran." Cropper v. Brown, 6 Vet.App. 450, 452 (1994). A veteran is defined, in relevant part, as "a person who served in the active military, naval, or air service." 38 U.S.C. § 101(2); see 38 C.F.R. § 3.1(d) (2018). 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. See 38 U.S.C. § 101(2); 38 C.F.R. § 3.40 (2018); see also 38 U.S.C. § 107.
VA regulations provide that certain types of documents may be used to establish qualifying service. 38 C.F.R. § 3.203(a) (2018). 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. Id.
If, however, the evidence of service submitted does not meet the requirements of § 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, 539 F.3d at 1380 (). Once the service department determines whether an individual had qualifying service, its determination is "conclusive and binding" on VA. Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Duro v. Derwinski, 2 Vet.App. 530, 532 (1992).
It is undisputed that VA did not request verification of Ms. Gayudan's service from the Department of the Army, but, instead, sought verification from the NPRC. R. at 126-27. The Board, relying on this Court's decision in Tagupa, noted that "VA shall request verification of service from the service department" "absent evidence of delegation to NPRC of the service department's authority to determine qualifying service." R. at 5 (internal quotations removed); see Tagupa, 27 Vet.App. at 101; 38 C.F.R. § 3.203(c). To that end, the Board noted that a January 2016 MOA between the Department of the Army and NARA had delegated responsibility of verifying service to NPRC. R. at 5, 7.
The Court agrees with the Secretary that the Board failed to provide adequate reasons or bases for its adverse determination and will accept the concession of error. As acknowledged by the Secretary, the January 2016 MOA is not contained in the record before the agency and the Board decision does not indicate whether the Board properly reviewed the MOA to ensure that it delegated the Army's authority to verify service. Secretary's Br. at 5. Instead, it appears that the Board relied solely on the RO's mention of the MOA in the November 2016 Statement of the Case. R. at 7 (); see R. at 55. However, the entire extent of the RO's discussion of the January 2016 MOA was that "the negative certification from NPRC is compliant with the court ruling in Tagupa." R. at 55. As a result, it is unclear whether the Board properly performed a de novo review of the MOA when it determined that Ms. Gayudan did not have qualifying service in the Commonwealth Army of the Philippines. See Secretary's Br. at 5.
The Board's failure to independently review the January 2016 MOA is significant for two reasons. First, the Court in Tagupa found that, although an MOA existed between the Department of the Army and NARA, the language of the MOA was ambiguous as to "whether the MOA assigns to NARA [and by extension NPRC] the authority to make administrative determinations verifying service or assigns to NARA the duties to act simply as a reference librarian." Tagupa, 27 Vet.App. at 101. As a result, even though the MOA purportedly delegated the Army's duty to verify service to NARA, the ambiguous language precluded the Court from finding delegation and the Court remanded the case for VA to seek verification from the Army. Id.
Unlike the Court in Tagupa, which had access to and reviewed the MOA in question, the Board, in Ms. Gayudan's case, does not appear to have reviewed the January 2016 MOA upon which it relied to find that the Army properly delegated its duty to verify service to NPRC. As the January 2016 MOA is not contained in the record and the Board did not discuss whether the MOA unambiguously delegated verifying authority to NPRC, the Court cannot accept the Board's conclusory statement that the January 2016 MOA provides the requisite delegation, especially where the Court in Tagupa, the case upon which the Board seemingly relies, found another MOA to not provide unambiguous language of delegation.[2]
Second even if the January 2016 MOA...
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