Veteranclaims’s Blog

January 23, 2015

Single Judge Application; Tagupa v. McDonald, __ Vet.App. __, No. 11–3575, 2014 WL 4199213, (Vet.App. Aug. 26, 2014); NPRC; Verify Service; Service Dept.

Excerpt from decision below:

“C. Earlier Effective Date for the Grant of DIC
The record reflects that the appellant’s spouse died in service of the Philippine Commonwealth Army. R. at 283. He was presumed to have died on October 23,
1944, and the “[e]arliest date of determination (or presumption) of death” was September 10, 1947. Id. However, the Board determined that “[t]he appellant’s earliest informal claim was received November 25, 2008, with an original claim submitted subsequently,” on March 16, 2009. R. at 7; see R. at 267-75, 277.
The Court recently decided Tagupa v. McDonald, __ Vet.App. __, No. 11–3575, 2014 WL 4199213, (Vet.App. Aug. 26, 2014), which considered whether VA may allow NPRC to stand in for a service department for the purposes of fulfilling its obligations to verify service. On remand, the Board should consider the impact, if any, of Tagupa on the appellant’s claim.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-1936
DIOSDADA A. SAMANTE, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The pro se appellant, Diosdada A. Samante, appeals an April
23, 2013,
Board of Veterans’Appeals (Board)decisionthatdeniedherclaimsfor (1)
accrued benefits, (2) non-
service-connected pension benefits, and (3) an earlier effective date for
the grant of dependency and
indemnity compensation (DIC) benefits.1
Record (R.) at 3-12.
Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This
appeal is timely, and the
Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a)
and 7266. For the reasons that
follow, the Court will vacate that part of the April 23, 2013, decision
denying the appellant pension
benefits and remand the matter for further proceedings consistent with
this decision. The decision
will otherwise be affirmed.
Although the appellant’s informal brief is difficult to understand,it is
clear from the first page
that she is contesting all three issues that were decided in the Board’s
decision. Appellant’s Informal
(Inf.) Brief (Br.) at 1. The Court will therefore address each issue in
turn.
The appellant’s spouse, Rufino R. Samante, served as a member of the
Philippine Commonwealth Army
(USAFFE) from December 31, 1941, to October 23, 1944. R. at 283-85.
1

I. ANALYSIS
A. Accrued Benefits
In the decision on appeal, the Board denied the appellant accrued benefits,
finding (1) “the
appellant’s spouse did not have any pending claims for VA benefits at the
time of his death,” and (2)
“no monetary benefit was due or unpaid prior to his death.” R. at 5.
Although the Court has
considered the arguments set forth in her informal brief, including the
argument that she was unable
to file within the one-year period from the date of her late-husband’s
death, see Appellant’s Inf. Br.,
Attachment (Att.) at 2-3, the appellant has failed to persuade the Court
that the Board’s findings are
the product of clear error. See Hood v. Shinseki, 23 Vet.App. 295, 299 (
2009) (“The Court reviews
factual findings under the ‘clearly erroneous’ standard such that it will
not disturb a Board finding
unless, based on the record as a whole, the Court is convinced that the
finding is incorrect.”); see also
38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a) (2014).
B. Pension Benefits
The appellant appears to challenge the Board’s findings regardingthe
nature of her husband’s
service. Appellant’s Inf. Br., Att. at 5. In denying the appellant’s claim
for pension benefits, the
Board found, in pertinent part, that “[t]he service department verified
that the appellant’s spouse did
not have active service in the United States Armed Forces.” R. at 4. The
Board reasoned that “[t]he
NPRC [(National Personnel Records Center)] has certified that the
appellant’s spouse had no service
in the United States Armed Forces.” R. at 6.
The Court holds that the Board failed to provide an adequate statement of
reasons or bases
to support its decision. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7
Vet.App. 517, 527 (1995)
(holding that the Board’s statement of reasons or bases for its decision ”
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”). In that regard, the Board failed to discuss material
evidence pertaining to the nature of
Mr. Samante’s service. Namely, the Board did not discuss a November 1955
VA Form 3101,
Request for Army Information, and corresponding response, Military
Personnel Records Center
(MPRC) Form 1-632, R. at 283-85, which may indicate Mr. Samante’s service
in the Armed forces
of the United States, R. at 284; compare R. at 6 (“The [National Personnel
Records Center] has
certified that the appellant’s spouse had no service in the United States
Armed Forces.”). The Board
2

is obligated to evaluate the evidence as fact-finder and its failure to
do so renders its statement of
reasons or bases inadequate. See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.
App. at 527; Caluza v.
Brown, 7 Vet.App. 498, 506 (1995) (the Board must analyze the credibility
and probative value of
the evidence, account for the evidence that it finds persuasive or
unpersuasive, and provide the
reasons for its rejection of anymaterial evidence favorable to the
claimant),aff’d per curiam, 78 F.3d
604 (Fed. Cir. 1996) (table); see also Deloach v. Shinseki, 704 F.3d 1370,
1380 (Fed. Cir. 2013)
(reaffirming “that the evaluation and weighing of evidence are factual
determinations committed to
the factfinder—in this case, the Board”); Washington v. Nicholson, 19
Vet.App. 362, 367–68 (2005)
(noting that it is the Board’s duty, as fact finder, to assess the
credibility and probative weight of all
relevant evidence).
Accordingly, the Court will vacate that part of the Board’s decision
denying the appellant
pension benefits and remand the matter. See Tucker v. West, 11 Vet.App.
369, 374 (1998) (“Where
the Board has . . . failed to provide an adequate statement of reasons or
bases for its determinations
. . . a remand is the appropriate remedy.”). On remand, the appellant is
free to submit additional
evidence and argument, including the arguments raised in her brief to this
Court, in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order),
and the Board must
consider any such evidence or argument submitted.2
See Kay v. Principi, 16 Vet.App. 529, 534
(2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C.
§§ 5109B and 7112
(requiring Secretary to provide for “expeditious treatment” of claims
remanded by Board or Court).
C. Earlier Effective Date for the Grant of DIC
The record reflects that the appellant’s spouse died in service of the Philippine Commonwealth Army. R. at 283. He was presumed to have died on October 23,
1944, and the “[e]arliest date of determination (or presumption) of death” was September 10, 1947. Id. However, the Board determined that “[t]he appellant’s earliest informal claim was received November 25, 2008, with an original claim submitted subsequently,” on March 16, 2009. R. at 7; see R. at 267-75, 277.
The Court recently decided Tagupa v. McDonald, __ Vet.App. __, No. 11–3575, 2014 WL 4199213, (Vet.App. Aug. 26, 2014), which considered whether VA may allow NPRC to stand in for a service department for the purposes of fulfilling its obligations to verify service. On remand, the Board should consider the impact, if any, of Tagupa on the appellant’s claim.
2
3

In general, the effective date of an award of benefits based on an
original claim is the date
of VA’s receipt of the application or the date entitlement arose,
whichever is later. 38 U.S.C.
§ 5110(a); see also 38 C.F.R. § 3.400 (2014). Where death occurs in
service, the effective date is
the “[f]irst day of the month fixed by the Secretary concerned as the date
of actual or presumed
death, if claim is received within 1 year after the date the initial
report of actual death or finding of
presumed death was made.” 38 C.F.R. § 3.400(c)(1).3
The Board’s determination of the proper
effective date for an award of VA benefits is a finding of fact that the
Court reviews under the
“clearlyerroneous”standard of review. See 38 U.S.C. § 7261(a)(4); Evans v.
West, 12 Vet.App.396,
401 (1999).
The appellant does not argue that she filed a claim prior to November 25,
2008, or otherwise
demonstrate that the Board’s effectivedatedetermination is ”
clearlyerroneous.” See Hilkert v. West,
12 Vet.App. 145, 151 (1999) (en banc) (“An appellant bears the burden of
persuasion on appeals to
this Court.”), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table);
see also Evans, 12 Vet.App.
at 401. Rather, the appellant appears to argue, as she did below, that she
did not know about Mr.
Samante’s death and, therefore, could not have filed a claim within one
year of his death. See
Appellant’s Inf. Br., Att. at 6. The Board, however, addressed this
argument, finding “[t]he record
contradicts her assertion,” R. at 8, explaining that “[i]n November 1955,
the appellant filed an
inquiry for service record and information on her deceased spouse which
informed her, at that time,
that her spouse was presumed to have died in October 1944.” R. at 8; see R.
at 283-85.
The appellant’s arguments essentially seek relief in equity. Although
sympathetic to the
appellant’s arguments, this Court “is not a court of equity” and cannot
mandate an award of benefits
in the absence of statutory entitlement. Moffitt v. Brown, 10 Vet.App. 214,
225 (1997); see
Rosenberg v. Mansfield, 22 Vet.App. 1, 5 (2007) (“The [U.S.] Supreme Court
has held that the
Appropriations Clause of the Constitution, U.S. Const. art. I, § 9, cl. 7,
precludes the judiciary from
ordering an award of public funds to a statutorily ineligible claimant on
the basis of equitable
The Court notes that the Board cited the wrong effective date regulation
in the decision on appeal—38 C.F.R.
§ 3.400(c)(2), governing “[s]ervice-connected death after separation from
service.” R. at 8. Nevertheless, as the Board
found the earliest claim for benefits was filed in November 2008, the
Board’s error is not prejudicial as a matter of law.
See 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 556 U.S. 396, 406 (2009) (
holding that the Veterans Court must “take
due account of the rule of prejudicial error”).
3
4

estoppel.” (citing OPM v. Richmond, 496 U.S. 414, 430 (1990))), aff’d sub
nom. Rosenberg v.
Peake, 296 Fed. Appx. 53 (Fed. Cir. 2008). As the Board
correctlydetermined that “[t]he appellant’s
earliest informal claim was receivedNovember25, 2008,” R. at 7, the Court
has no basis upon which
to disturb the Board’s effective date finding in the decision on appeal.
See 38 U.S.C. § 5110(a); see
also 38 C.F.R. § 3.400.
II. CONCLUSION.
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
that part of the Board’s April 23, 2013, decision denying the appellant
pension benefits is
VACATED and the matter is REMANDED to the Board for further proceedings
consistent with this
decision. The decision is otherwise AFFIRMED.
DATED: January 13, 2015
Copies to:
Diosdada A. Samante
VA General Counsel (027)
5

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