Monday, December 15, 2014

Tagupa v. McDonald

Tagupa v. McDonald, docket no. 11-3575 (August 26, 2014)
Held: The plain meaning of 38 C.F.R. § 3.203(c) requires verification of service from the service department – not from the National Personnel Records Center (NPRC).

The Board denied benefits to a veteran’s surviving spouse because it determined that her husband had no service as a member of the Philippines Commonwealth Army to establish veteran status. The surviving spouse provided her husband’s identification card from the “Anderson Fil-American Guerrillas” stating that he “actively participated in the anti-Japanese resistance movement in the Philippines” from 1942 to 1945. She also submitted affidavits from her husband’s comrades and a certificate thanking him for his service from President Obama.

On appeal to the CAVC, the surviving spouse argued that the Board failed to comply with 38 C.F.R. § 3.203(c) when it sought verification of service from the NPRC instead of the service department. The Secretary argued that the NPRC acts as an agent of the Army, maintains the relevant records, and has the authority to make service verifications. To support these assertions, the Secretary provided a memorandum of agreement (MOA) between the Army and the National Archives (NARA), in which the Army “purported to transfer ‘responsibility for providing reference services on the collection of Philippine Army files and archives holdings’ to NARA indefinitely.” *3-4.

The Court determined that, according to the “the plain language of the regulation and caselaw[,] . . . the entity in the best position to verify service is the appropriate service department and VA’s acceptance of any service department document, without further verification by the service, is limited and discretionary under § 3.203(c).” *6-7. This regulation describes the process required to verify a veteran’s service when a veteran does not submit certain service records, such as a DD Form 214. 38 C.F.R. § 3.203. The regulation states that when a veteran does not submit evidence that meets the requirements of subsection (a) (such as a DD Form 214), VA “shall request verification of service from the service department.” 38 C.F.R. § 3.203(c). The Court took judicial notice of the MOA, but found that it was unclear as to whether it assigned authority to NARA “to make administrative determinations verifying service” or whether it only assigned “duties to act simply as a reference librarian.” *7-8. The Court held that the “plain language clearly states that, when VA has determined that evidence of service does not comply with subsection (a) [of 38 C.F.R. § 3.203], VA ‘shall request verification of service from the service department.’” *8 (emphasis in the original). The Court remanded the case to the Board to request verification of the veteran’s service from the Army.

The Court discussed VA’s duty to assist with respect to service records, and noted that VA’s own policy manual requires it to seek verification from alternative sources if its standard means of verification are unsuccessful. *9. The Court also held that the Board provided inadequate reasons or bases for its rejection of the claimant’s submitted evidence and failed to address the possibility that her husband served in an “unrecognized guerrilla unit during World War II.” *11-12. The Court stated that new evidence must “‘be submitted and considered in connection with a [service verification request]’” and that “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.” *11.

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