Veteranclaims’s Blog

October 13, 2014

Single Judge Application; Tagupa v. McDonald, No. 11-3575, 2014, U.S. App. Vet. Claims LEXIS 1455, (Vet. App. August 26, 2014); Qualifying Service; 38 C.F.R. § 3.203;

Excerpt from decision below:

“Moreover, the Board relied on the NPRC “Certificate of Military Service” form even though
NPRC did not stamp that document with an official seal and a disclaimer at the bottom of the form
makes plain that the information recorded on it is “[n]ot valid without official seal.” R. at 371. The
Board believed that it could do so because a veterans service officer employed by an Alabama state
agency wrote that the certification form “is a true and exact copy of either an original document or
of a copy issued by the service department or public custodian of records.” R. at 372. The Board
4

did not explain to the appellant how it determined that a state official has the authority to override a federal form that states, unambiguously and without qualification, that it may not be accepted unless the issuing agency has affixed an official seal to it.
Any errors arising from these facts, however, are superceded by a more significant legal error that the Board has committed. The Board, as noted, relied entirely on statements made by NPRC to determine when the appellant’s service ended. R. at 9-10. There is no evidence that VA has ever requested information about the appellant’s service from the Department of the Army or obtained a document issued by the Department of the Army that contains the date the appellant left active service. See 38 C.F.R. § 3.203. NPRC is a division of the National Archives and Records Administration (NARA) and is clearly not a service department. 38 C.F.R. §
3.203(a)(1).
The Court recently considered whether VA may allow NPRC stand in for a  service department for the purposes of fulfilling its § 3.203 obligations. Tagupa v. McDonald, No. 11-3575, 2014, U.S. App. Vet. Claims LEXIS 1455, (Vet. App. August 26, 2014). The Court concluded that it could not ascertain whether “the Department of the Army delegated its duty to make administrative determinations verifying service to NARA, or its agency NPRC.” Id. at *14.
The Court then stated that [a]bsent 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); Tropf [v. Nicholson], 20 Vet.App. [317,] 320 [(2006)] (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. Id.
This holding is directly applicable to this case. NPRC’s conclusion that the appellant’s service ended on June 12, 1950, is not adequate to meet VA’s obligation to obtain verification of the appellant’s service from his service department. Id.; 38 C.F.R. § 3.203.”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-2782
BUNYON A. LONG, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The pro se appellant, Bunyon A. Long, appeals a July 22,
2013, Board
of Veterans’ Appeals (Board) decision in which the Board denied him
entitlement to non-service-
connected pension benefits. Record (R.) at 3-10. This appeal is timelyand
the Court has jurisdiction
over the claim on appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266.
Single-judge disposition is
appropriate when the issue is of “relative simplicity” and “the outcome is
not reasonably debatable.”
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that
follow, the Court will
vacate the Board’s decision and remand the matter on appeal for further
proceedings consistent with
this decision.
I. BACKGROUND
The appellant served on active dutyin the U.S. Armyfor about two years. R.
at 15-16, 28-31,
130, 303-05, 342-45, 359. The date the appellant separated from the Army
is in dispute. The record
indicates that the appellant left active service sometime between June
1950 and September 1951.
Id. Fire destroyed the documents that would definitively identify the
appellant’s period of service.
R. at 5, 296, 299, 303-04, 323.

In August 2006, the appellant filed a claim for a non-service-connected
pension. R. at 339,
341-45. According to a National Personnel Records Center (NPRC) ”
Certification of Military
Service” form datedOctober13, 2006, the appellant served on active
dutyfrom September30, 1948,
until June 12, 1950. R. at 371. A notation on the bottom of the form
indicates that it was “issued
in the absence of a copy of the actual Report of Separation or its
equivalent.” Id. The notation
further indicates that the certification was intended to “serve[] as
verification of militaryservice and
may be used for any official purpose.” Id. The certification does not
include any information
explaining how the person who prepared it arrived at the serviceentryand
separation dates it reports.
Id.
InNovember2006andFebruary2007,VAusedthePersonnelInformationExchangeSystem
(PIES) to request information about the exact dates of the appellant’s
service. R. at 303-04. In
response, NPRC reported that “no separation documents are available from
which to verify active
duty dates.” R. at 6, 303-04. NPRC wrote, however, that the appellant
served from September 1948
until June 12, 1950. R. at 6, 303-05. NPRC obtained these dates by
reviewing “alternate records
sources.” Id. In August 2007, VA formally concluded that the appellant’s ”
service medical records
are unavailable for review.” R. at 299.
On July 22, 2013, the Board issued its decision here on appeal. R. at 2-10.
The Board
determined that the October 2006 NPRC document and the NPRC responses to
VA’s PIES requests
constitute adequate service department verification of the dates of the
appellant’s service. R. at 5,
9-10. The Board concluded that, based on the dates NPRC provided, the
appellant is not entitled to
a non-service-connected pension. R. at 10.
II. ANALYSIS
A. Initial Matter
Inhis brief,theappellantessentiallyasserts that he should be granted
entitlementto disability
benefits for back, ear, and eye disorders. Appellant’s Brief (Br.) at 1.
In the decision currently on
appeal, the Board did not decide whether to award the appellant
entitlement to disability
compensation for these or any other disorders. The Court’s jurisdiction
extends only to final Board
decisions. 38 U.S.C. § 7266(a); see In re Quigley, 1 Vet.App. 1 (1990).
Because the Board did not
2

decide whether the appellant is entitled to the disability benefits he
seeks, the Court maynot address
the appellant’s argument at this time.
The Court notes that the Board is aware that the appellant believes he is
entitled to disability
benefits for back, ear, and eye disorders and has referred the appellant’s
claims to the regional office
for it to take “appropriate action.” R. at 4. The appellant, therefore,
may pursue his claims through
the VA adjudicatory process. If, in the future, they come before the Board,
the Board denies them,
and the appellant appeals the Board’s decision, the Court will then have
the authority to review the
Board’s conclusions. 38 U.S.C. § 7266(a).
B. Dates of Service
Congress has mandated that the “Secretary shall pay to each veteran of a
period of war who
meets the service requirements of this section . . . and who is
permanently and totally disabled from
non-service-connecteddisabilitynot theresultoftheveteran’swillful
misconduct,pensionattherate
prescribed by this section.” 38 U.S.C. § 1521(a). For the purposes of
this appeal, the appellant’s
eligibilityfor a non-service-connected pension hinges on whetherhis
service”beganorended during
a period of war.” 38 U.S.C. § 1521(j)(3).
World War II and the “Korean conflict” are both “period[s] of war” under
section 1521.
38 C.F.R. § 3.2 (d), (e) (2014). There seems to be no dispute that the
appellant’s service began after
the statutorily defined end date of World War II. Id.; see also 38 U.S.C. §
101(8). The “period of
war” ascribed to the Korean conflict began on June 27, 1950, and ended on
January 31, 1955.
38 U.S.C. § 101(9); 38 C.F.R. § 3.2(e). The Board found that the
appellant left active service 15
days before the Korean conflict began. R. at 10. The appellant asserts
that he served on active duty
during the Korean conflict. Appellant’s Br. at 1-2.
Generally,theBoardmayreachfactualconclusionsnecessarytoresolveappeals
byreviewing
multifarious and often conflicting record materials and deciding which of
those materials carry the
greatest probative value. 38 U.S.C. § 7261(a)(4); Owens v. Brown, 7 Vet.
App. 429, 433 (1995)
(holding that it is the Board’s responsibility “to assess the credibility
and weight to be given to
evidence.”); Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (holding that the
Board “must account
fortheevidencewhichitfinds to be persuasive or unpersuasive, analyze the
credibilityandprobative
value of all material evidence submitted by and on behalf of a claimant,
and provide the reasons for
3

its rejection of any such evidence”), aff’d per curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table). The
Board’s fact finding authority does not operate in the usual way, however,
when it must verify the
details of a veteran’s service.
When VA must determine whether a claimant served in the armed forces, it ”
is prohibited
from finding, on any basis other than a service department document, which
VA believes to be
authentic and accurate, or service department verification, that a
particular individual served.” Duro
v. Derwinski, 2 Vet.App. 530, 532 (1992). As a result, “service department
findings are binding on
VA for purposes of establishing service in the U.S. Armed Forces.” Id.;
see also Soria v. Brown, 118
F.3d 747, 749 (Fed. Cir. 1997).
If the record contains a document “issued by a service department” that
conveys certain
specific information, VA may rely on that document to establish a
claimant’s pension eligibility.
38 C.F.R. § 3.203(a), (b) (2014); see also King v. Shinseki, 26 Vet.App.
484, 490-91 (2014). If the
record does not contain an acceptable document, the Secretary “shall
request verification of service
from the service department.” 38 C.F.R. § 3.203(c); King, 26 Vet.App. at
491-92. In this case, VA
obtained a “Certification of Military Service” allegedly prepared by an
NPRC employee and used
the PIES system to obtain additional statements from NPRC. R. at 5-6, 303-
05, 371. NPRC
repeatedly confirmed that the appellant did not serve during the Korean
conflict. R. at 303-05, 371;
see 38 U.S.C. § 101(9); 38 C.F.R. § 3.2(e).
The appellant argues that the date NPRC said he left active service “was
pulled out [of] a
hat.” Appellant’s Br. at 2. The appellant’s frustration is certainly
understandable. VA has made it
clear to him that his service records are not available. R. at 299. NPRC,
however, determined that,
based on “alternate record sources,” he left active service on June 12,
1950. R. at 303-05. No one
has explained to the appellant what those “alternate record sources” are.
Id.
Moreover, the Board relied on the NPRC “Certificate of Military Service” form even though
NPRC did not stamp that document with an official seal and a disclaimer at the bottom of the form
makes plain that the information recorded on it is “[n]ot valid without official seal.” R. at 371. The
Board believed that it could do so because a veterans service officer employed by an Alabama state
agency wrote that the certification form “is a true and exact copy of either an original document or
of a copy issued by the service department or public custodian of records.” R. at 372. The Board
4

did not explain to the appellant how it determined that a state official has the authority to override
a federal form that states, unambiguously and without qualification, that it may not be accepted
unless the issuing agency has affixed an official seal to it.
Any errors arising from these facts, however, are superceded by a more significant legal error that the Board has committed. The Board, as noted, relied entirely on statements made by NPRC to determine when the appellant’s service ended. R. at 9-10. There is no evidence that VA has ever requested information about the appellant’s service from the Department of the Army or obtained a document issued by the Department of the Army that contains the date the appellant left active service. See 38 C.F.R. § 3.203. NPRC is a division of the National Archives and Records Administration (NARA) and is clearly not a service department. 38 C.F.R. §
3.203(a)(1).
The Court recently considered whether VA may allow NPRC stand in for a  service department for the purposes of fulfilling its § 3.203 obligations. Tagupa v. McDonald, No. 11-3575, 2014, U.S. App. Vet. Claims LEXIS 1455, (Vet. App. August 26, 2014). The Court concluded that it could not ascertain whether “the Department of the Army delegated its duty to make administrative determinations verifying service to NARA, or its agency NPRC.” Id. at *14.
The Court then stated that [a]bsent 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); Tropf [v. Nicholson], 20 Vet.App. [317,] 320 [(2006)] (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. Id.
This holding is directly applicable to this case. NPRC’s conclusion that the appellant’s service ended on June 12, 1950, is not adequate to meet VA’s obligation to obtain verification of the
appellant’s service from his service department. Id.; 38 C.F.R. § 3.203.
On remand, the Board must
either secure a document issued by the Department of the Army that
complies with the restrictions
5

listed in § 3.203 (a) and (b), or contact the Department of the Army and
ask it to verify the dates the
appellant’s service began and ended. 38 C.F.R. § 3.203.
The Court will not at this time address any additional arguments the
appellant may have
raised. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (
holding that “[a] narrow
decision preserves for the appellant an opportunity to argue those claimed
errors before the Board
at the readjudication, and, of course, before this Court in an appeal,
should the Board rule against
him”). On remand, the appellant is free to submit additional evidence and
argument on the remanded
matters, and the Board is required to consider any such relevant evidence
and argument. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002); 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 the Secretary to provide
for “expeditious treatment” of claims remanded by the Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record, the Board’s July 22, 2013, decision is VACATED and the matter on appeal is
REMANDED for
further proceedings consistent with this decision.
DATED: September 9, 2014
Copies to:
Bunyon A. Long
VA General Counsel (027)
6

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