*1 Appellant, TAGUPA, Juliet T. McDONALD, Secretary A.
Robert Affairs, Appellee.
Veterans
No. 11-3575. of Appeals
United States Court Claims,
for Veterans
Argued April Aug.
Decided *2 D.C., for on the brief
ington, were appellee. KASOLD, and Judge, Chief
Before DAVIS, Judges. MOORMAN and DAVIS, Judge: spouse of Tagupa, surviving T. Juliet Tagupa, appeals through. counsel Luis T. 2, 2011, August from Board Veter- (Board) Appeals ans’ decision denied because her did her benefits husband VA service to es- not have tablish status as veteran of the U.S. previously Forces. The Court af- denying decision bene- firmed Board’s May single judge fits deci- Shinseki, 11-3575, Tagupa v. No. sion. (May LEXIS 2013 U.S. 2013) dec.). Cqurt (mem. However, the Tagupa’s motion for recon- granted Mrs. appeal to a sideration and panel of the Court to whether determine the National Personnel Records Center (NPRC) constitutes purposes verifying for under 38 (2014). 3.203(c) C.F.R. v. Shin- 11-3575, No. 2013 U.S. seki 2013) (order). (July 25, reasons, following For the Court will deny motion for leave evidence, supplemental submit will May withdraw decision and panel issue this decision in its. stead. determine, Court holds that cannot submitted, the record as De- partment delegated has authority make service decisions National Archives and Records Adminis- NPRC, (NARA), agency, tration or its Richmond, Boelzner, Virgi- David E. purposes verifying service under nia, for appellant, 3.203(c). Therefore, absent evidence Jonas, statutorily delegated duty, plain A. A. Brandon whom Will Gunn, Counsel; Camp- meaning requires verifi- R. Randall General Counsel; bell, C. of service Nisha cation relevant Assistant General Counsel; Hall, department. Accordingly, the Court will Assistant General Deputy Katina, August Board decision all of Wash- set aside Michele Russell comrades, to seek from two of and remand matter vits her husband’s service, verification Mr. who attested his and a certifi- recognizing cate Mr. thanking his “in the Armed Forces of the I. BACKGROUND States,” signature United bears Mr. December died Barack President Obama. at 87. *3 Tagupa Mrs. an application filed deny Tagupa VA continued to Mrs. ben- on VA benefits based her late husband’s in February efits Statement military II World service. Because War (SOC) Supplemen- Case and a March 2010 Tagupa’s Mr. on the “Recon- name was not tal SOC because her husband no quali- had Roster,” Recognized structed Guerrilla fying military filing service. ap- After an Manila, (RO) regional Philippines, office Board, to Mrs. peal informed his requested verification of service from requests RO that verification NPRC,1 using the service number from NPRC used the number “47020” (R.) 47020. 159. NPRC’s May Record at R. at On rather than “147020.” 50. Octo- response 2009 stamped noted that Mr. Ta- 13, 2010, RO submitted a third ber gupa “has no as a member request for service verification to NPRC Army, Philippines Commonwealth includ- “147020,” using number and also included ing guerrillas, in recognized the service Anderson Fil-American Guerrillas Armed Forces.” Id. United States identification card and the affidavits from 9, 2009, The record that on reflects June attesting comrades to his Mr. the RO submitted a to request second 20, 2010, Mrs. Tagu- service. On October Mr, Tagu- NPRC service verification sought information from NARA about pa 19, 2009, pa’s on June service and RO military her late husband’s com- denied Mrs. claim for benefits. noting a form her pleting that hus- August R. at 159. NPRC’s 2009 re- September separated service in band request to sponse the second verification LGF, “Army 1945 at Forces 48 Luzon negative stamped response contained a copy at 42. VA Guerilla.” received response. to first identical R. at 155. Tagupa’s completed of Mrs. NARA form (NOD) In Disagreement her Notice of days 2010-10 on November after decision, the June 2009 RO Mrs. NPRC responded to third verification submitted evidence her ser- husband’s request by indicating the submitted in- — vice, including an identification card from change not in formation did warrant a Guerrillas,” the “Anderson Fil-American negative at prior verification. R. Tagupa, Luis Tabac with the OF II. THE PARTIES ARGUMENTS on
number “147020” the front the card. Tagu- Tagupa argues R. at This Mr. card states that Mrs. that failed actively 3.203(c), pa participated in it anti-Japa- comply with 38 C.F.R. when in Philip- sought nese of Mr. Tagupa’s resistance movement 4,1942, pines from March until September guerrilla working as a with the U.S. he honorably when was dis- in the from the Philippines Armed Forces charged. R. department. at 115. In addition this NPRC than rather document, that not submitted affida- asserts the NPRC have She does NARA, Peake, (Fed. part Capellan 1. NPRC is a “and 539 F.3d receives types concerning Cir.2008). records of stores various persons who served in the Armed Forces.” ar- Fil-American identifi- Anderson Guerrillas Philippine records. She the relevant identifies name possible that cation card her husband gued her brief destroyed in the on its that his were and states face records relevant Louis; recognized by govern- “U.S.A. facility group NPRC’s St. fire at however, she conceded asserts argument oral ment.” R. 114. She furthermore Philip- supra destroy Capellán, the fire of 1973 did not violated that the Board pine by failing records. note another re- submit provided after her quest to NPRC she Secretary asserts response, separation place service. husband’s agent Depart- operates as NPRC erred also contends Board She maintains relevant relying negative responses from the records, and has responses these NPRC did because department determina- to make service Tagupa’s guerrilla Mr. address whether *4 authority to support As for NPRC’s tions. unrecognized could have been with determinations, make guerrillas. a 1998 memoran- Secretary the (MOA) the De- agreement of dum between NARA, Army a docu- partment of and the III. ANALYSIS August the Board before “Generally, qualify order ‘[i]n of agreement, Department In this the the benefits, upon party a claimant ... the “responsibility Army purported to transfer predicates service the claimant the whose on the services providing reference ”’ claim ... Don be] “veteran.” [must and ar- Philippine collection of files Shinseki, 167, 170-71 24 nellan v. indefinitely. holdings” chives to NARA Brown, (2010) 6 (quoting Cropper v. Vet. (Sec.) (Resp.) to Secretary’s Response See 450, (1994)). 452 A is “a App. “veteran” Order, July Exhibit A. Court’s 2013 military, person who served the active MOA, response In to the Mrs. naval, service,” discharged or air and was supple- a motion for leave to submit filed conditions other than dishonorable. ju- Court take mental evidence should the 101(2); 3.1(d)- § C.F.R. 38 U.S.C. 38 supplemen- notice of the MOA. The dicial 1941, (2014). July President Roosevelt sought Mrs. tal information military of placed Philip forces House July was a White admit pines in the service of the “Recognizing the blog posting entitled East, of Forces of Far and members Filipino of Extraordinary Contribution against Philippine fought forces who blog This article discussed
Veterans.” Japanese fought guerrillas or who Filipino Equity of the the work Veterans occupation may be during Japanese Working Interagency Compensation Fund eligible for certain veteran’s benefits VA, Department Group-comprising Capellan, the United See 539 F.3d States. Defense, state- and contained NARA-and 1375; (detailing see also 38 U.S.C. 107 Specif- ments on the duties of the NPRC. service veterans and the NPRC ically, blog stated types such of benefits veterans does not make service determinations. entitled); (allowing §§ are 38 C.F.R. 3.40 Appellant’s for Leave to Sub- See Motion dependency compensation burial and and Supplemental mit Evidence at service), Philippine guerrilla benefits for general evidentiary re (detailing 3.203 also contends status) quirements proving status veteran Board veteran should have found (2014). 3.203(a), because under 38 C.F.R.
A. Language Regulation Plain of the ment or if copy by was issued public custodian of records who certifies regu of a “interpretation statute that it' is true copy and exact of the law,” a question lation is Lane v. Princi document in custody or, the custodian’s 1331, (Fed.Cir.2003), pi, 339 F.3d and if copy was submitted an accred- novo, performed our review is de Kent v. agent, ited attorney service organiza- (Fed.Cir. Principi, 389 F.3d representative tion who successfully has 2004). regu To meaning discern the completed VA-prescribed training on lation, begins plain Court with the records, and who certifies that language regulation. Perrin Cf. it is a copy true and exact of either an States, United 444 U.S. 100 S.Ct. original copy document or of a (“We begin L.Ed.2d 199 public or a cus- itself.”); language with the ... Act records; todian and Brown, (Fed. Smith v. 35 F.3d Cir.1994) (noting that the canons statu The document contains infor- needed tory interpretation apply to interpreting length, mation as to time character regulations), superseded statute as stat service; ed in Samish Indian Nation United (3) In the opinion
States, (Fed.Cir.2005). F.3d “If Veterans Affairs genu- the document is the meaning is clear from ine the information contained in is *5 language, is then that ‘the end of the accurate. ” Nicholson, matter.’ 20 Tropf v. Vet.App. 317, (2006) Gardner, (quoting 320 v. Brown (c) Verification from the depart- 115, 120, service 552,
513 U.S. 115 S.Ct. 130 ment. When the claimant does not sub- (1994)). 462 L.Ed.2d mit of evidence service or the evidence At language issue is the of 38 C.F.R. submitted does not the require- meet 3.203, § evidentiary regulation (a) of paragraph ments of this section proving service, provides in perti- (and (b) paragraph of this section in part: nent claims), pension Department of Vet- claimant,. (a) by a Evidence submitted request shall erans Affairs of verification For purpose establishing entitle- service from the department. service ment dependency to ... indemnity § 38 C.F.R. 3.203. compensation or burial benefits De- partment of may Affairs accept Veterans (a) of regulation Subsection uses the evidence of by service “may” gives term and thus VA discretion (or directly claimant sent Depart- whether the determine evidence submit ment by of Veterans Affairs- the service sufficient, ted to establish service is itself department), 214, such as a DD Form department without additional service veri Discharge Certifícate of Release from Brown, fication. See v. 6 Vet.App. Willis Duty, Active or original Certificate of 433, (1994) (using 435 “may” word Discharge, without from discretionary); statute makes action see appropriate department if the Brown, also Stewart v. 10 18 following evidence meets the conditions: (1997) (noting that an action is committed (1)The evidence is a document issued to the discretion the Secretary where by department. However, A copy “may”). uses word an is original acceptable if imposed specific document the VA has three conditions copy (1) was issued the service depart- on its use this discretion: The docu
100 chivist, notwithstanding any other law.” aby is issued question 3104; (2) see also 44 U.S.C. contains 44 the document U.S.C. department; information; it placing 4102 NARA and (establishing specified Thus, Archivist”). genuine. “the supervision the document opinion, . restrict VA’s discretion. rigid requirements 3.203 and promulgation After (c), requires Soria, the word “shall” Department subsection Duro and service verification request that VA MOA with the 1998 executed from either a department when assigned responsibility of NARA that no claimant submits evidence on the collec- “providing reference submit that the evidence VA determines Army files and archival tion of satisfy requirements ted does July Resp. to Court’s holdings.” Sec. Inc, (a). v. Mil See Lexecon subsection A, Order, previously Exhibit at As 2013 Lerach, 523 Hynes Bershad & berg Weiss stated, this Secretary submitted MOA 62 140 118 L.Ed.2d U.S. S.Ct. proof Court directly (“[T]he mandatory ... nor ‘shall[ ]’ Army has delegated obligation impervious mally creates de- make service ,.. Yung v. (citing Anderson discretion.” the MOA terminations to NARA. Because kau, 428, 91 U.S. S.Ct. proceedings in the not in was evidence (1947))). lan Interpreting this L.Ed. VA, must first before the Court determine regula has held that the guage, the Court may judicial notice of the take finding per that a prohibits VA tion document. in the U.S. Armed Forces son served anything a document on other than based Generally, precluded Court a service verifica evidentiary considering material that department. a service Duro tion appeal, is not contained in the record (1992). Derwinski, (Fed. Shinseki, F.3d Kyhn see Appeals Court Federal Cir.2013); however, may the Court take *6 Circuit) (Federal recognized that Circuit subject judicial of facts not to rea notice long depart treated the has service “VA generally dispute if such facts are sonable on as conclu [verification] ment’s decision of and “capable known accurate are Brown, binding.” v. 118 and Soria sive by to sources ready determination resort (Fed.Cir.1997). Accordingly, F.3d 749 reasonably accuracy be cannot whose of plain language regulation and 201(b); see questioned.” Fed.R.Evid. entity in caselaw have determined Peake, 22 Nieves-Rodriguez verify to is the position service the best (2008) that, (noting while the Fed 302 department and VA’s appropriate service on binding not eral Rules of are Evidence doc acceptance any department of service Board, rules on or on the “the Court ument, by verification without further expert testimony provide useful witness discretionary service, is limited under Shinseki, AZ v. 731 guidance”); see also 3.203(a). (Fed.Cir.2013) (agreeing 1316 F.3d department is Although service each of that the Federal Rules with this Court binding charged making service de- guidance”). Evidence “offer useful determinations, Congress per- partment judicial notice The Court will take to author- Government mits some officials of between the the MOA certify to and to the existence the “Archivist to facts ize Army Department of and NARA. See on determinations make administrative 201(b); see United Ar- also States to the the basis of transferred records FedR.Evid.
101 (5th Herrera-Ochoa, that, clearly F.3d states when VA has deter Cir.2001) (“An may take appellate court mined that evidence does service not facts, (a), comply notice if such facts with subsection VA “shall re judicial even court.”); verification by quest not of service ser were the trial noticed from 3.203(c) department.” vice Tramway Corp., Mills v. Denver F.2d C.F.R. added); (1946) (“Whether (emphasis Tropf See appellate at 320 (concluding meaning that if judicial will court for the first time take clear, matter). judicially that ends the notice notable fact rests clear, discretion.”). language Because this the Court largely in its own Based will to MOA, remand case to seek verifi however, VA provisions in the it is cation of Mr. Tagupa’s with the unclear to assigns MOA Department of Army. NARA the to make administra verifying tive or as determinations judicial Court declines to take no- signs to NARA to simply act as duties tice of Government websites referenced example, a reference librarian. For the parties, blog or of the White House 6(a) MOA’s paragraph NARA’s describes referenced stated (1)' processing inquiries mission the NPRC not make does involving to Philippine benefits due determinations. This information was not (2) Army personnel, respond Guerrilla potentially before the Board and contains ing requests to from Filipinos or their next conflicting information as to whether of kin concerning service in the Philippine agent NPRC can as an act Army recognized Commonwealth purpose making ser- guerrillas, Philippine searching the determinations, questions vice and raises archives, (4) Army files and furnishing per concerning the in the records among things, sonnel folders from other FED. archives housed at NPRC. See rosters, guerrilla final preparing (allowing judi- court take EVID. replies to Act Freedom Information subject cial notice of a fact reason- A, Resp., cases. See Sec. Exhibit at 2-3. able dispute). 8(a)(2), however, In paragraph the MOA Duty B. To Assist expressly states that duty addition seek responsibility retains “to respond requests involving decisions 3.203, duty VA also has to assist only determinations that can be made obtaining necessary a claimant in evidence legal (e.g., custodian the records *7 claim, to including establish substantiate denials, litiga Freedom Information Act ing veteran status. 38 U.S.C. tion).” 4. Id. at 5103A(a)(l); Nicholson, § Canlas (2007). ambiguous in language Vet.App. duty of the This precludes MOA finding making the Court from cludes to reasonable efforts obtain Department delegat governmental entity of the all held Army records duty ed its to that are claim make administrative deter relevant to the and that NARA, if verifying pertain military minations service to to claimant’s the service its agency, Secretary NPRC. infor provides Absent evidence del claimant egation depart to mation NPRC sufficient to locate such records. 3.159(c)(2) (2014). ment’s determine 38 C.F.R. To that to service, end, many mandatory language required to as plain VA make requests language necessary VA’s controls. That as to obtain records Canlas, expressly open Court left In may discontin agencies. from Federal VA duty to assist question VA’s to records from a its efforts obtain ue records where the only requires to obtain agency when VA department Federal already negative provided NPRC that efforts would had it concludes continued futile, the Federal 317- requires service verification. be as that ei From its well as agency prior advise VA decisions Circuit, exist do not decisions the Federal requested ther the documents and “the recognizes does not have them. that “NPRC” or that the Court custodian interchange department” are used determining that continued efforts service Id. In however, futile, Secretary notify ques in ably; must these decisions the be would 3.203(c) may VA was unable tion whether NPRC of the records veteran to obtain, efforts explain to VA made be a substitute records, any fur before the Court. See describe was not an issue obtain those 1; respect to e.g., with note Palor v. Ni Capellan, supra ther take action VA will cholson, (2007); Canlas, 5103A(b)(2). the claim. See 38 U.S.C. supra. remanding the Court is Because assist, duty to with VA’s Consistent to seek verification matter VA to establish Circuit has held that Federal Mr. service from the Tagupa’s re department must service the service premature to determine documentary evi view and consider requires to to duty assist VA whether the Capellan, F.3d at dence submitted. development if the De conduct additional Circuit also de The Federal 1382-83. provides negative partment the NPRC provision “[t]he clared response. verification does archives Reports Rejecting or Bases C. Reasons all evidence relat constitute review of Service Evidence (em Id. at 1380 ed to service.” added). Here, prove infor husband’s attempting VA her phasis forwarded during along service with Forces mation NPRC with II, submitted an requests, receiving but after World War Fil-American Guerrillas identifi- negative responses nothing Anderson NPRC’s did bearing Ac cation the number “14720” verify Mr. card more service. manual, containing group adjudication the notation that this cording when “[rjecognized by the verification was “U.S.A. Govern- standard means unsuccessful, ment.” at 114. The identification card instructs ROs to prove rank ser- of veri lists Mr. Luis T. attempt seek means alternative from, geant Sampta Regiment, the 11th Di- by establishing fying I, sources, actively par- Security vision certifies that he among other the Social Administration, anti-Japanese ticipated commis resistance historical State enlisting in sions, Philippines, personnel Federal or offices of movement State employ receiving 1942 and an honorable management, current or former March ers, Board, R. at discharge September U.S. Railroad Retirement *8 courthouses, also an affidavit regis Tagupa or 84. Mrs. submits and rosters county Fagel, states that he by Angel that from who published ters States list veterans I, II, they active- her husband when in War served with who served World World War Adjudica ly anti-Japanese in the resis- participated and the Korean Conflict. VA movement, Ill, iii, and an Ro- pt. subpt. tance affidavit Manual, tion Procedures Soriano, that Mr. 2, dolfo de who attests E.30.b. leon ch. sec.
103 evidence, as Air Tagupa worked a Force Ob- able “U.S. remand is warranted. server,” West, Regimen 369, in “125 H 45h Bat- Vet.App. Tucker v. 11 374 116,154. talion, 6th Division.” R. at (finding Final- appropriate where remand ly, Tagupa has, alia, Mrs. submits as evidence her provide Board inter failed to an husband’s service an certificate adequate bases). undated of reasons or statement honoring recognizing the service of Tabag Tagupa in
Luis
the Armed Forces
D. Capellán Violation
States,
signed
purportedly
the United
Tagupa-
Mrs.
argues
also
Barack Obama. R. at
President
failing
Board
in
erred
submit another
Although
as
the documents offered
evi-
request for verification from NPRC after
Tagupa’s
quali-
dence of Mr.
do not
regarding
information
her
she
fy as a DD Form
a Certificate of
place
husband’s
separation
service.
Discharge
Duty,
Release
from Active
Capellán
In
the Federal Circuit
“that
held
original
Discharge,
an
Certificate
as set
a claimant’s
sub
[must]
new evidence
be
(a)
forth in
regulation,
subsection
mitted and
considered
connection
awith
argues
Tagupa
Mrs.
that the identification Verification of
request
from the
card constitutes U.S. service document
department.’”
Board’s
IV. CONCLUSION
Derwinski,
See Gilbert
erroneous.
(“‘A
above,
finding
the Court
reasons stated
For the
decision,
31, 2013,
although there is
May
“clearly erroneous” when
WITHDRAWS
it,
reviewing
court
support
motion for leave
evidence
DENIES
evidence,
is left with the
SETS
the entire evidence
supplemental
submit
firm
that a mistake
August
definite and
conviction
deci-
ASIDE
Board’s
(quoting United
for VA to
has been committed.’”
sion, and
matter
REMANDS the
*10
Co.,
364,
Gypsum
U.S.
States v.
525,
(1948)));
68 S.Ct.
see also 38 C.F.R. establish service, (1) documents must be department, contain
specified information, opin More’over, genuine).
ion be the Board’s finding
reasons bases documents
inadequate to verify service under are of judicial
standable and facilitative review. Allday Brown, Vet.App.
See
(1995) (Board’s “must statement be ade
quate enable claimant understand precise decision, basis Board’s as to facilitate well review this
Court”). CHECO, Appellant,
Cerise McDONALD, Secretary
Robert A. Affairs, Appellee.
Veterans
No. 11-3683. HAGEL, LANCE, Before Appeals
United States Court of SCHOELEN, Judges. for Veterans Claims. Aug. ORDER
PER CURIAM. through
Cerise appealed Checo counsel July Appeals Board Veterans’ (Board) decision that entitlement denied disability rating an increased for lumbosa- stenosis, spinal including bulges cral disk vertebrae, cur- L3-L4 and L5-S1 rently disabling. 20% Ms. Checo rated Appeal on filed her Notice of December days more than 120 after date decision, which the Board mailed alleged prevent- she her homelessness