Veteranclaims’s Blog

August 27, 2014

Tagupa v. McDonald, NO. 11-3575(Argued April 2, 2014 Decided August 26, 2014); 38 C.F.R. § 3.203(c) (2014)

Excerpt from decision below:

“Although VA exercised its regulatory discretion to reject Mrs. Tagupa’s documents purporting to establish her husband’s service, it provided no reasons for rejecting
10

evidence that, on its face, appears to be evidence supporting service. Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (holding that the Board must provide an adequate statement of reasons or bases “for its rejection of any material evidence favorable to the claimant”); Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board’s statement “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”). Because the Board provided an inadequate statement of reasons for rejecting favorable evidence, remand is warranted. Tucker v. West, 11 Vet.App. 369, 374 (1998) (finding remand appropriate where the Board has, inter alia, failed to provide an adequate statement of reasons or bases).”

====================

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-3575
JULIET T. TAGUPA, APPELLANT,
v.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued April 2, 2014 Decided August 26, 2014)

David E. Boelzner, of Richmond, Virginia, for the appellant.
Brandon A. Jonas, with whom Will A. Gunn, General Counsel; R. Randall Campbell,
Assistant General Counsel; Nisha C. Hall, Deputy Assistant General Counsel; and Michele
Russell Katina, all of Washington, D.C., were on the brief for the appellee.
Before KASOLD, Chief Judge, and MOORMAN and DAVIS, Judges.

DAVIS, Judge, filed the opinion of the Court. KASOLD, Chief Judge, filed an opinion
concurring in part and dissenting in part.

DAVIS, Judge: Juliet T. Tagupa, surviving spouse of Luis T. Tagupa, appeals through
counsel from an August 2, 2011, Board of Veterans’ Appeals (Board) decision that denied her VA
benefits because her husband did not have qualifying military service to establish status as a veteran of the U.S. Armed Forces. The Court previously affirmed the Board’s decision denying benefits in a May 31, 2013, single-judge decision. Tagupa v. Shinseki, No. 11-3575, 2013 U.S. Vet. App. LEXIS 863 (May 31, 2013) (mem. dec.). However, the Court granted Mrs. Tagupa’s motion for
reconsideration and submitted the appeal to a panel of the Court to determine whether the National
Personnel Records Center (NPRC) constitutes a service department for purposes of verifying service under 38 C.F.R. § 3.203(c) (2014). Tagupa v. Shinseki, No. 11-3575, 2013 U.S. Vet. App. 1223 (July 25, 2013) (order).
For the following reasons, the Court will deny Mrs. Tagupa’s motion for leave to submit
supplemental evidence, and will withdraw its May 31, 2013, decision and issue this panel decision
in its stead. The Court holds that it cannot determine, on the record as submitted, whether the
Department of the Army has delegated the authority to make service decisions to the National
Archives and Records Administration (NARA), or its agency, the NPRC, for purposes of verifying
service under § 3.203(c). Therefore, absent evidence of a statutorily delegated duty, the plain
meaning of VA’s regulation requires verification of service from the relevant service department.
Accordingly, the Court will set aside the August 2011 Board decision and remand the matter for VA
to seek verification of Mr. Tagupa’s service from the Department of the Army.

I. BACKGROUND
Mr. Tagupa died in 1993. In December 2008, Mrs. Tagupa filed an application for VA
benefits based on her late husband’s World War II military service. Because Mr. Tagupa’s name was not on the “Reconstructed Recognized Guerrilla Roster,” the Manilla, Philippines, regional office (RO) requested verification of his service from the NPRC,1 using the service number 47020. Record (R.) at 159. NPRC’s May 2009 stamped response noted that Mr. Tagupa “has no service as a member of the Philippines Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.” Id. The record reflects that on June 9, 2009, the RO submitted a second request to NPRC for service verification of Mr. Tagupa’s service and on June 19, 2009, the RO denied Mrs. Tagupa’s claim for benefits. R. at 113, 159. NPRC’s August 2009 response to the second verification request contained a negative stamped response identical to the first response. R. at 155.
In her Notice of Disagreement (NOD) to the June 2009 RO decision, Mrs. Tagupa submitted
evidence of her husband’s service, including an identification card from the “Anderson Fil-American
Guerrillas,” issued to Luis Tabac Tagupa, with the number “1 47020” on the front of the card. R.
at 114. This card states that Mr. Tagupa actively participated in the anti-Japanese resistance
movement in the Philippines from March 4, 1942, until September 27, 1945, when he was honorably
1 NPRC is a part of NARA, “and receives and stores records of various types concerning persons who served in the Armed Forces.” Capellan v. Peake, 539 F.3d 1373, 1376 (Fed. Cir. 2008).
2
]

discharged. R. at 115. In addition to this document, Mrs. Tagupa submitted affidavits from two of
her husband’s comrades, who attested to his service, and a certificate recognizing and thanking Mr. Tagupa for his service “in the Armed Forces of the United States,” which bears the signature of
President Barack Obama. R. at 87.
VA continued to deny Mrs. Tagupa benefits in a February 2010 Statement of the Case (SOC)
and a March 2010 Supplemental SOC because her husband had no qualifying military service. After filing an appeal to the Board, Mrs. Tagupa informed the RO that its requests for verification from NPRC used the number “47020” rather than “147020.” R. at 50. On October 13, 2010, the RO
submitted a third request for service verification to NPRC using number “147020,” and also included the Anderson Fil-American Guerrillas identification card and the affidavits from Mr. Tagupa’s comrades attesting to his service. On October 20, 2010, Mrs. Tagupa sought information from NARA about her late husband’s military service by completing a form and noting that her husband separated from service in September 1945 at “Army Forces 48 LGF, Luzon Guerilla.” R. at 42. VA received a copy of Mrs. Tagupa’s completed NARA form on November 22, 2010–10 days after NPRC responded to VA’s third verification request – by indicating the submitted information did not warrant a change in its prior negative verification. R. at 48.

II. ARGUMENTS OF THE PARTIES
Mrs. Tagupa argues that VA failed to comply with 38 C.F.R. § 3.203(c), when it sought
verification of Mr. Tagupa’s service as a guerrilla working with the U.S. Armed Forces in the
Philippines from the NPRC rather than the service department. She asserts that the NPRC does not
have the relevant Philippine records. She argued in her brief that it is possible the relevant records
were destroyed in the 1973 fire at NPRC’s facility in St. Louis; however, at oral argument she
conceded that the fire of 1973 did not destroy Philippine records.
In response, the Secretary asserts that NPRC operates as an agent of the Department of the
Army, maintains the relevant Philippine records, and has the authority to make service department
determinations. As support for NPRC’s authority to make service department determinations, the
Secretary submitted a 1998 memorandum of agreement (MOA) between the Department of the Army
and NARA, a document not before the Board in August 2011. In this agreement, the Department
3
of the Army purported to transfer “responsibility for providing reference services on the collection
of Philippine Army files and archives holdings” to NARA indefinitely. See Secretary’s (Sec.)
Response (Resp.) to Court’s July 2013 Order, Exhibit A.
In response to the MOA, Mrs. Tagupa filed a motion for leave to submit supplemental
evidence should the Court take judicial notice of the MOA. The supplemental information Mrs.
Tagupa sought to admit was a July 9, 2013, White House blog posting entitled “Recognizing the
Extraordinary Contribution of Filipino Veterans.” This blog article discussed the work of the
Filipino Veterans Equity Compensation Fund Interagency Working Group–comprising VA, the
Department of Defense, and NARA–and contained statements on the duties of the NPRC.
Specifically, the blog stated that the NPRC does not make service determinations. See Appellant’s
Motion for Leave to Submit Supplemental Evidence at 6.
Mrs. Tagupa also contends that the Board should have found veteran status under 38 C.F.R.
§ 3.203(a), because the Anderson Fil-American Guerrillas identification card identifies her husband
by name and states on its face that his military group is recognized by the “U.S.A. government.” R.
114. She furthermore asserts that the Board violated Capellan, supra note 1, by failing to submit
another request to NPRC after she provided her husband’s place of separation from service. She also
contends that the Board erred in relying on negative responses from the NPRC because these
responses did not address whether Mr. Tagupa’s guerrilla service could have been with unrecognized
guerrillas.
III. ANALYSIS
“Generally, ‘[i]n order to qualify for VA benefits, a claimant . . . or the party upon whose
service the claimant predicates the claim . . . [must be] a “veteran.'”‘ Donnellan v. Shinseki,
24 Vet.App. 167, 170-71 (2010) (quoting Cropper v. Brown, 6 Vet.App. 450, 452 (1994)). A
“veteran” is “a person who served in the active military, naval, or air service,” and was discharged
under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d) (2014). In July
1941, President Roosevelt placed the military forces of the Philippines in the service of the U.S.
Armed Forces of the Far East, and members of the Philippine forces who fought against the Japanese
or who fought as guerrillas during the Japanese occupation may be eligible for certain veteran’s
4
benefits from the United States. See Capellan, 539 F.3d at 1375; see also 38 U.S.C. § 107 (detailing
the Philippine service veterans and the types of benefits to which such veterans are entitled);
38 C.F.R. §§ 3.40 (allowing dependency and compensation and burial benefits for Philippine
guerrilla service), 3.203 (detailing the general evidentiary requirements for proving veteran status)
(2014).
A. Plain Language of the Regulation
The “interpretation of a statute or regulation is a question of law,” Lane v. Principi, 339 F.3d
1331, 1339 (Fed. Cir. 2003), and our review is performed de novo, Kent v. Principi, 389 F.3d 1380,
1384 (Fed. Cir. 2004). To discern the meaning of a regulation, the Court begins with the plain
language of the regulation. Cf. Perrin v. United States, 444 U.S. 37, 42 (1979) (“We begin with the
language of the . . . Act itself.”); Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994) (noting that
the canons of statutory interpretation apply to interpreting regulations), superseded by statute as
stated in Samish Indian Nation v. United States, 419 F.3d 1355 (Fed. Cir. 2005). “If the meaning
of the regulation is clear from its language, then that is ‘the end of the matter.'” Tropf v. Nicholson,
20 Vet.App. 317, 320 (2006) (quoting Brown v. Gardner, 513 U.S. 115, 120 (1994)).
At issue is the language of 38 C.F.R. § 3.203, the evidentiary regulation for proving service,
which provides in pertinent part:
(a) Evidence submitted by a claimant. For the purpose of establishing entitlement to
. . . dependency and indemnity compensation or burial benefits the Department of
Veterans Affairs may accept evidence of service submitted by a claimant (or sent
directly to the Department of Veterans Affairs by the service department), such as a
DD Form 214, Certificate of Release or Discharge from Active Duty, or original
Certificate of Discharge, without verification from the appropriate service department
if the evidence meets the following conditions:
(1) The evidence is a document issued by the service department. A copy of an
original document is acceptable if the copy was issued by the service department or
if the copy was issued by a public custodian of records who certifies that it is a true
and exact copy of the document in the custodian’s custody or, if the copy was
submitted by an accredited agent, attorney or service organization representative who
has successfully completed VA-prescribed training on military records, and who
certifies that it is a true and exact copy of either an original document or of a copy
issued by the service department or a public custodian of records; and
(2) The document contains needed information as to length, time and character of
service; and
5
(3) In the opinion of the Department of Veterans Affairs the document is genuine and
the information contained in it is accurate.
****
(c) Verification from the service department. When the claimant does not submit
evidence of service or the evidence submitted does not meet the requirements of
paragraph (a) of this section (and paragraph (b) of this section in pension claims), the
Department of Veterans Affairs shall request verification of service from the service
department.
38 C.F.R. § 3.203.
Subsection (a) of the regulation uses the term “may” and thus gives VA discretion to
determine whether the evidence submitted to establish service is itself sufficient, without additional
service department verification. See Willis v. Brown, 6 Vet.App. 433, 435 (1994) (using the word
“may” in a statute makes action discretionary); see also Stewart v. Brown, 10 Vet.App. 15, 18 (1997)
(noting that an action is committed to the discretion of the Secretary where regulation uses word
“may”). However, VA has imposed three specific conditions on its use of this discretion: (1) The
document in question is issued by a service department; (2) the document contains specified
information; and (3) in VA’s opinion, the document is genuine. Thus, rigid requirements restrict
VA’s discretion. In subsection (c), the word “shall” requires that VA request service verification
from the service department when either a claimant submits no evidence of service or VA determines
that the evidence submitted does not satisfy the requirements of subsection (a). See Lexecon Inc. v.
Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (“[T]he mandatory ‘shall[]’ . . .
normally creates an obligation impervious to . . . discretion.” (citing Anderson v. Yungkau, 329 U.S.
482, 485 (1947))). Interpreting this language, the Court has held that the regulation prohibits VA
from finding that a person served in the U.S. Armed Forces based on anything other than a document
issued by a service department or verification by a service department. Duro v. Derwinski, 2
Vet.App. 530, 532 (1992). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
recognized that “VA has long treated the service department’s decision on [verification] as
conclusive and binding.” Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Accordingly, the
plain language of the regulation and caselaw have determined that the entity in the best position to
verify service is the appropriate service department and VA’s acceptance of any service department
6
document, without further verification by the service, is limited and discretionary under § 3.203(a).
Although each service department is charged with making binding service department
determinations, Congress permits some Government officials to authorize the “Archivist to certify
to facts and to make administrative determinations on the basis of records transferred to the
Archivist, notwithstanding any other law.” 44 U.S.C. § 3104; see also 44 U.S.C. § 4102
(establishing NARA and placing it under the supervision of “the Archivist”). After the promulgation
of § 3.203 and Duro and Soria, the Department of the Army executed the 1998 MOA with NARA
that assigned the responsibility of “providing reference service on the collection of Philippine Army
files and archival holdings.” Sec. Resp. to Court’s July 2013 Order, Exhibit A, at 1. As previously
stated, the Secretary submitted this MOA directly to the Court as proof that the Department of the
Army has delegated its authority to make service department determinations to NARA. Because the
MOA was not in evidence in the proceedings before VA, the Court must first determine whether it
may take judicial notice of the document.
Generally, the Court is precluded from considering evidentiary material that is not contained
in the record on appeal, see Kyhn v. Shinseki, 719 F.3d 572 (Fed. Cir. 2013); however, the Court may
take judicial notice of facts not subject to reasonable dispute if such facts are generally known or are
“capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably
be questioned.” FED. R. EVID. 201(b); see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 302 (2008)
(noting that, while the Federal Rules of Evidence are not binding on the Court or on the Board, “the
rules on expert witness testimony provide useful guidance”); see also AZ v. Shinseki, 731 F.3d 1303,
1316 (Fed. Cir. 2013) (agreeing with this Court that the Federal Rules of Evidence “offer useful
guidance”).
The Court will take judicial notice of the existence of the MOA between the Department of
the Army and NARA. See FED. R. EVID. 201(b); see also United States v. Herrera-Ochoa, 245 F.3d
495, 501 (5th Cir. 2001) (“An appellate court may take judicial notice of facts, even if such facts
were not noticed by the trial court.”); Mills v. Denver Tramway Corp., 155 F.2d 808, 812 (1946)
(“Whether an appellate court will for the first time take judicial notice of a judicially notable fact
rests largely in its own discretion.”). Based on the provisions in the MOA, however, it is unclear
whether the MOA assigns to NARA the authority to make administrative determinations verifying
7
service or assigns to NARA the duties to act simply as a reference librarian. For example, the
MOA’s paragraph 6(a) describes NARA’s mission as (1) processing inquiries from VA involving
benefits due to Philippine Army or Guerrilla personnel, (2) responding to requests from Filipinos or
their next of kin concerning service in the Philippine Commonwealth Army and recognized
guerrillas, (3) searching the Philippine Army files and archives, (4) furnishing personnel folders
from among other things, guerrilla rosters, and (5) preparing final replies to Freedom of Information
Act cases. See Sec. Resp., Exhibit A, at 2-3. In paragraph 8(a)(2), however, the MOA expressly
states that the Department of the Army retains the responsibility “to respond to requests involving
decisions or determinations that can only be made by the legal custodian of the records (e.g.,
Freedom of Information Act denials, litigation).” Id. at 4.
The ambiguous language of the MOA precludes the Court from finding that the Department
of the Army delegated its duty to make administrative determinations verifying service to NARA,
or its agency, NPRC. Absent evidence of delegation to NPRC of the service department’s authority
to determine qualifying service, the plain mandatory language of VA’s regulation controls. That
language clearly states that, when VA has determined that evidence of service does not comply with
subsection (a), VA “shall request verification of service from the service department.” 38 C.F.R.
§ 3.203(c) (emphasis added); See Tropf, 20 Vet.App. at 320 (concluding that if the meaning of
regulation is clear, that ends the matter). Because this language is clear, the Court will remand the
case to VA to seek verification of Mr. Tagupa’s service with the Department of the Army.
The Court declines to take judicial notice of Government websites referenced by the parties,
or of the White House blog referenced by Mrs. Tagupa that stated that the NPRC does not make
service determinations. This information was not before the Board and contains potentially
conflicting information as to whether NPRC can act as an agent of the service department for the
purpose of making service determinations, and raises questions concerning the records in the
Philippine archives housed at NPRC. See FED. R. EVID. 201 (allowing a court to take judicial notice
of a fact not subject to reasonable dispute).
B. Duty To Assist
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
8
establishing veteran status. 38 U.S.C. § 5103A(a)(1); Canlas v. Nicholson, 21 Vet.App. 312, 316
(2007). This duty includes making reasonable efforts to obtain all records held by a governmental
entity that are relevant to the claim and that pertain to the claimant’s military service if the claimant
provides the Secretary information sufficient to locate such records. 38 C.F.R. § 3.159(c)(2) (2014).
To that end, VA is required to make as many requests as necessary to obtain records from Federal
agencies. VA may discontinue its efforts to obtain records from a Federal department or agency only
when it concludes that continued efforts would be futile, which requires that the Federal department
or agency advise VA that either the requested documents do not exist or that the custodian does not
have them. Id. In determining that continued efforts would be futile, the Secretary must notify the
veteran of the records VA was unable to obtain, explain the efforts VA made to obtain those records,
and describe any further action VA will take with respect to the claim. See 38 U.S.C. § 5103A(b)(2).
Consistent with VA’s duty to assist, the Federal Circuit has held that to establish service the
service department must review and consider the documentary evidence submitted. Capellan, 539
F.3d at 1382-83. The Federal Circuit also declared that “[t]he provision by the NPRC of the Reports
in its archives does not constitute review of all the evidence related to military service.” Id. at 1380
(emphasis added). Here, VA forwarded information to NPRC along with its service verification
requests, but after receiving NPRC’s negative responses did nothing more to verify Mr. Tagupa’s
service. According to VA’s adjudication manual, when the standard means of service verification
prove unsuccessful, VA instructs ROs to attempt to seek alternative means of verifying service by
establishing service from, among other sources, the Social Security Administration, State historical
commissions, Federal or State offices of personnel management, current or former employers, U.S.
Railroad Retirement Board, county courthouses, and rosters or registers published by States that list
veterans who served in World War I, World War II, and the Korean Conflict. VA ADJUDICATION
PROCEDURES MANUAL, pt. III, subpt. iii, ch. 2, sec. E.30.b.
In Canlas, the Court expressly left open the question whether VA’s duty to assist requires VA
to obtain records where the NPRC had already provided a negative service verification. 21 Vet.App.
at 317-18. From its prior decisions as well as decisions from the Federal Circuit, the Court
recognizes that “NPRC” and “the service department” are used interchangeably; however, in these
decisions the question whether NPRC may under § 3.203(c) be a substitute for the service
9
department was not an issue before the Court. See e.g., Capellan, supra note 1; Palor v. Nicholson,
21 Vet.App. 325 (2007); Canlas, supra. Because the Court is remanding the matter for VA to seek
verification of Mr. Tagupa’s service from the Department of the Army, it is premature to determine
whether the duty to assist requires VA to conduct additional development if the Department of the
Army provides a negative verification response.
C. Reasons or Bases for Rejecting Evidence of Service
In attempting to prove her husband’s service with the U.S. Armed Forces during World War
II, Mrs. Tagupa submitted an Anderson Fil-American Guerrillas identification card bearing the
number “14720” and containing the notation that this group was “[r]ecognized by the “U.S.A.
Government.” R. at 114. The identification card lists Mr. Luis T. Tagupa’s rank as sergeant with
the 11th Sampta Regiment, Division I, and certifies that he actively participated in the anti-Japanese
resistance movement in the Philippines, enlisting in March 4, 1942 and receiving an honorable
discharge on September 27, 1945. R. at 84. Mrs. Tagupa also submits an affidavit from Angel
Fagel, who states that he served with her husband when they actively participated in the anti-
Japanese resistance movement, and an affidavit from Rodolfo de leon Soriano, who attests that Mr.
Tagupa worked as a “U.S. Air Force Observer,” in the “125 H Regimen 45h Battalion, 6th Division.”
R. at 116, 154. Finally, Mrs. Tagupa submits as evidence of her husband’s service an undated
certificate honoring and recognizing the service of Luis Tabag Tagupa in the Armed Forces of the
United States, purportedly signed by President Barack Obama. R. at 87.
Although the documents offered as evidence of Mr. Tagupa’s service do not qualify as a DD
Form 214, a Certificate of Release or Discharge from Active Duty, or an original Certificate of
Discharge, as set forth in subsection (a) of the regulation, Mrs. Tagupa argues that the identification card constitutes a U.S. service document because it was issued by the Anderson Fil-American Guerrillas, a group that identified itself as recognized by the U.S. government. And, the identification card on its face provides the time, length, and character of Mr. Tagupa’s service.
The Board noted the documents Mrs. Tagupa submitted and tersely stated that “the
information and evidence submitted . . . may not be accepted as verification . . .that [Mr. Tagupa]
had active service.” R. at 8. Although VA exercised its regulatory discretion to reject Mrs. Tagupa’s documents purporting to establish her husband’s service, it provided no reasons for rejecting
10

evidence that, on its face, appears to be evidence supporting service. Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (holding that the Board must provide an adequate statement of reasons or bases “for its rejection of any material evidence favorable to the claimant”); Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board’s statement “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”). Because the Board provided an inadequate statement of reasons for rejecting favorable evidence, remand is warranted. Tucker v. West, 11 Vet.App. 369, 374 (1998) (finding remand appropriate where the Board has, inter alia, failed to provide an adequate statement of reasons or bases).

D. Capellan Violation
Mrs. Tagupa also argues that the Board erred in failing to submit another request for
verification from NPRC after she submitted information regarding her husband’s place of separation
from service. In Capellan the Federal Circuit held “that a claimant’s new evidence [must] be
submitted and considered in connection with a ‘verification of service request from the service
department.'” 539 F.3d at 1381 (quoting 38 C.F.R. § 3.203(c)). Moreover, there is no limit on the
number of requests that VA shall make to the service department for service verification when a
claimant fails to submit qualifying evidence of service. Sarmiento v. Brown, 7 Vet.App. 80, 85
(1994), overruled on other grounds by D’Amico v. West, 209 F.3d. 1322, 1327 (Fed. Cir. 2000). In
light of the remand for VA to seek verification of service from the Department of the Army, this
argument is now moot. In complying with this remand, VA should ensure that this new evidence
is submitted in connection with the verification request to the Department of the Army.

E. Unrecognized Guerrilla Service
The Board denied Mrs. Tagupa’s benefits based on NPRC’s reply to VA’s multiple requests
for information stating that Mr. Tagupa had “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 48, 155, 159. However, VA received no information from NPRC about whether Mr.
Tagupa served as a member of an unrecognized guerrilla group. See 38 U.S.C. § 107; 38 C.F.R.
§ 3.40 (d) (2) (ii) (defining “unrecognized guerilla service” as “service under a recognized
commissioned officer only if the person was a former member of the United States Armed Forces
(including the Philippine Scouts), or the Commonwealth Army”) (2013); VA ADJUDICATION
11

PROCEDURES MANUAL, pt. III, subpt. iv, ch. 4, sec. B. 4.6.d (recognizing that service in a “guerrilla unit under the command of a commissioned officer of the U.S. Armed Forces (including the Regular Philippine Scouts or in the Philippine Army) will be certified by the service department as ‘Unrecognized guerrilla service under . . . ‘ . . . by naming the officer and, if the officer was a
member of the Philippine Army, giving the officer’s rank and organization”).
In its decision, the Board mentioned that service department certifications may establish
unrecognized guerrilla service, which is qualifying service for VA compensation benefits. R. at 5
(noting that § 3.40 (d)(2) includes unrecognized guerrilla service and that this is service “under a
recognized commissioned officer, who was a former member of the U.S. Armed Forces or the
Commonwealth Army”). However, the Board’s analysis failed to address the possibility that Mr.
Tagupa served in an unrecognized guerrilla unit during World War II. Therefore, the Board provided
an inadequate statement of reasons or bases for its decision, which frustrates judicial review and
necessitates remand. Allday and Tucker, both supra.

III. CONCLUSION
For the reasons stated above, the Court WITHDRAWS its May 31, 2013, decision, DENIES
Mrs. Tagupa’s motion for leave to submit supplemental evidence, SETS ASIDE the Board’s August
2, 2011, decision, and REMANDS the matter for VA to seek verification of service from the
Department of the Army.

KASOLD, Chief Judge, concurring in part and dissenting in part: I fully agree that remand
is warranted so that the Secretary can seek verification of Mr. Tagupa’s service from the Department of the Army, as required by his regulation. I note, however, that I find the MOA clear in that the NPRC provides a reference service only; it may certify service department determinations in the record, but it lacks the authority to issue a service department determination that is not otherwise contained in the records it maintains. I also agree that the Board provided an inadequate statement of reasons or bases regarding whether Mr. Tagupa served in an unrecognized guerrilla unit during World War II.
I do not, however, agree with the majority’s determination that the Board provided no reasons
12

for rejecting the documents submitted by Mrs. Tagupa for purposes of verifying service under 38
C.F.R. § 3.203(a). To the contrary, the Board addressed the documents Mrs. Tagupa submitted as
support that her husband served with the U.S. military and found that none of the documents were
official service department documents that meet the requirements of 38 C.F.R. § 3.203(a). Based
on the record of proceedings, the Board’s finding is plausible and not clearly erroneous. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (“‘A 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.'” (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))); see also 38 C.F.R. § 3.203(a) (to establish qualifying service, documents must (1) be issued by a service department, (2) contain specified information, and (3) in VA’s opinion be genuine). Moreover, the Board’s reasons or bases for finding the documents inadequate to verify service are understandable and facilitative of judicial review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board’s statement “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”).
13

 

 

Advertisements
Older Posts »

Blog at WordPress.com.