Capellan v. Peake

United States Court of Appeals for the Federal Circuit

2007-7236

FORTUNATA CAPELLAN,

Claimant-Appellant,

v.

JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

Respondent-Appellee.

Fortunata Capellan, of Lopez, Quezon, Philippines, pro se.

Douglas K. Mickle, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant
Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General
Counsel, and Jamie L. Mueller, Attorney, Office of the General Counsel, United States
Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Chief Judge William P. Greene, Jr.
 United States Court of Appeals for the Federal Circuit

2007-7236

FORTUNATA CAPELLAN,

Claimant-Appellant,

v.

JAMES B. PEAKE, M.D.,
Secretary of Veterans Affairs,

Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in Case No. 05-
1990, Chief Judge William P. Greene, Jr.

__________________________

DECIDED: September 2, 2008
__________________________

Before NEWMAN, MAYER, and SCHALL, Circuit Judges.

Opinion for the court filed by Circuit Judge NEWMAN. Concurring opinion filed by
Circuit Judge SCHALL.

This appeal centers on the attempt of Fortunata Capellan to establish that her

husband, Santiago A. Capellan, was killed in the Battle of Bataan in 1942 while in the

Armed Forces of the Philippines in the service of the United States Armed Forces. His

body was never recovered. Mrs. Capellan’s claim is founded on 38 U.S.C. '107, which
provides certain veterans benefits to members of the Philippine military services who

were incorporated into the United States Armed Forces. See 38 C.F.R. '3.40.

After the war Mrs. Capellan applied for veterans’ benefits based on her

husband’s service. The application was granted and Mrs. Capellan received benefits

for several months in 1950 until they were terminated in August of that year. This

appeal is from the most recent denial of her claim for dependency and indemnity

compensation, by decision of the United States Court of Appeals for Veterans Claims

(the “Veterans Court”). The Veterans Court held that Mr. Capellan’s military service had

not been established by an official United States military document or verified by a

United States service department pursuant to 38 C.F.R. §3.203, and declined to

consider the new evidence from Philippine military authorities. 1 In its ruling the

Veterans Court appears to have diverged from other decisions concerning verification of

Philippine military service when new information was provided after an earlier adverse

determination. See, e.g., Padilla v. Nicholson, No. 05-2518, 2007 WL 412356, at *2

(Vet. App. Jan. 3, 2007) (requiring review of new information); Dela Cruz v. Nicholson,

No. 04-137, 2005 WL 3057877, at *3-*4 (Vet. App. Oct. 21, 2005) (requiring review of

new information).

At the threshold, the government challenges our jurisdiction of this appeal.

Jurisdiction

Pursuant to 38 U.S.C. '7292(a), as amended in 2002, this court has appellate

authority “with respect to the validity of a decision of the [Veterans Court] on a rule of

1
Capellan v. Nicholson, No. 05-1990, 2007 WL 561972 (Vet. App. Feb. 22,
2007).

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law or of any statute or regulation . . . or any interpretation thereof . . . that was relied on

by the Court in making the decision.” However, except to the extent that an appeal

presents a constitutional issue, this court “may not review (A) a challenge to a factual

determination, or (B) a challenge to a law or regulation as applied to the facts of a

particular case.” 38 U.S.C. '7292(d)(2). The 2002 amendment to '7292(a) enlarged

our jurisdiction beyond issues of the validity or interpretation of a statute or regulation, to

include review of any legal principle and its interpretation. See Morgan v. Principi, 327

F.3d 1357, 1361 (Fed. Cir. 2003) (“[T]he amendment enacted by Congress has the

effect of making the review of ‘a decision of the Court [of Appeals for Veterans Claims]

on a rule of law’ a separate jurisdictional basis, and textually independent of whether

that rule of law was ‘relied on’. . . .”); see also Wilson v. Principi, 391 F.3d 1203, 1209

(Fed. Cir. 2004) (“We have interpreted the revised statute as conferring on this court a

form of ‘case jurisdiction,’ as opposed to ‘issue jurisdiction.’”).

The Secretary of Veterans Affairs (herein “the VA”) argues that this court does

not have jurisdiction to consider any aspect of this appeal, stating that Mrs. Capellan is

simply seeking review of a factual determination concerning Mr. Capellan’s military

service. Mrs. Capellan argues that the decision of the Veterans Court was based on an

incorrect interpretation of certain statutes and regulations. The issues she raises

primarily concern 38 C.F.R. '3.203, a VA regulation that relates to evidence of military

service and that states the procedures to be followed by claimants and by the VA in

collaboration with the military services. Mrs. Capellan argues that this regulation was

incorrectly interpreted in view of the VA’s statutory duty to assist, 38 U.S.C. '5103A,

and the benefit-of-the-doubt statute applicable to veterans’ claims, 38 U.S.C. §5107(b).

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 We conclude that the jurisdictional requirements of §7292 are met. See Alpough

v. Nicholson, 490 F.3d 1352, 1358 (Fed. Cir. 2007) (accepting jurisdiction where the

Veterans Court relied on erroneous interpretations of 38 U.S.C. '101(3) and 38 C.F.R.

'3.53(b) in rejecting surviving spouse’s claim for benefits); Wilson, 391 F.3d at 1211

(accepting jurisdiction and remanding for reapplication of EAJA in light of statutory

change and intervening precedent). We thus accept jurisdiction, and remand for

reapplication of the relevant statutory and regulatory provisions, consistent with this

opinion.

BACKGROUND

Before and during World War II the Commonwealth of the Philippines was a

territory of the United States. 2 On July 26, 1941 President Roosevelt placed the military

forces of the Philippines in the service of the United States Armed Forces in the Far

East (USAFFE). See Military Order, 6 Fed. Reg. 3825 (July 26, 1941). The United

States duly provided that members of the Philippine military forces who fought the

Japanese invasion, or Philippine persons who fought as guerrillas during the Japanese

occupation, and their survivors, were eligible for certain benefits from the United States.

See 38 U.S.C. '107(a) (defining Philippine service qualifying for certain benefits,

including dependency and indemnity compensation for a surviving spouse pursuant to

chapter 13 of title 38); 38 C.F.R. ''3.40, 3.41 (specifying types of Philippine service

qualifying for dependency and indemnity compensation benefits).

2
Before the war, the Philippines had achieved a measure of self-
governance pursuant to the Philippine Independence Act of 1934, Pub. L. No. 73-127,
48 Stat. 456. The Philippines became independent on July 4, 1946. See generally
Quiban v. Veterans Admin., 928 F.2d 1154, 1156-58 (D.C. Cir. 1991).

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2007-7236
 After the war Mrs. Capellan filed a claim for death pension and other benefits

based on her husband’s military service and his death at Bataan. A United States Army

Report dated August 2, 1948 states that the Army confirmed that Santiago A. Capellan

served in the military service of the United States through the Philippine Commonwealth

Army, that his service began on December 23, 1941, and that he was killed in action on

February 28, 1942 during the battle for Bataan. The Report states that Mr. Capellan

was a private in “B” Company, 1st Battalion, 1st Infantry Regiment, and that three

affidavits pertaining to his military service were attached. On August 17, 1950 the Army

issued another Report, stating that Mr. Capellan “has no recognized guerrilla service

nor was he a member of the Commonwealth Army in the service of the Armed Forces of

the United States.” The 1950 Report does not explain the change from the 1948

Report, although it refers to a separate “loyalty report” on Mr. Capellan’s father which is

not included in the record. Mrs. Capellan briefly received benefits from the VA but they

were terminated in 1950.

The activity relevant to this appeal is focused on documentation from the

Philippine military authorities that Mrs. Capellan received in 1997 with respect to her

husband’s service and death at Bataan. A document dated December 9, 1997, signed

by Records Officer Romeo L. Soriben and Captain Narciso S. Erna, Assistant Adjutant

General of the Armed Forces of the Philippines, certified that Private Santiago Capellan

served in the “B Co 1st Bn 1st Regt,” and described his service as:

Beleaguered status fr 19 Dec 41 to 28 Fed 42; Died at Bagac, Bataan
Phils on 28 Fed 42; Termination of casualty status on 23 Oct 44 (RPD dtd
20 Nov 47)

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2007-7236
Admin. Rec. at 15. Mrs. Capellan also received a certification of the records of the

Armed Forces of the Philippines dated December 3, 1997 and signed by Captain

Narciso Erna, which recorded payments made in arrears for Mr. Capellan’s service

while a member of the Commonwealth Army of the Philippines in the
service of the USAFFE/GRLA.

Admin. Rec. at 16. These documents were submitted in January 1998 to the VA

Regional Office in Manila. In October 1999 the Regional Office wrote Mrs. Capellan

that it was unable to locate the relevant claims files and requested additional

information. The Regional Office letter stated:

So that proper adjudicative action may be taken on your claim, you must
furnish the following:
$ VA Form 21-534. Please fill out every blank which applies to you.
$ VA Form 21-4138. Please explain why your benefits were
terminated in July 1950.
$ Copies of Notices of Award and Disallowance to include all
available previous VA correspondence.
$ A copy of the veteran’s death certificate.
$ A copy of your marriage certificate.

Admin. Rec. at 24. Mrs. Capellan responded in December 1999, providing both

requested VA forms and stating that she had not received a death certificate because

her husband’s “body was unrecovered and no document was issued to us by proper

authorities. I hope that this military service record will serve as his death certificate.”

She included a copy of her marriage certificate, and explained that her copies of the

Notices of Awards and Disallowances were misplaced or lost and could not be provided.

She explained that Mr. Capellan’s father had received a letter from the VA in July 1950

asking for Mr. Capellan’s military service record but that “[w]e were not able to submit

the document needed because of improper guidance,” and referred to a February 1951

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2007-7236
letter from the VA stating that her benefits were terminated “for the reason that my

husband has no recognized guerilla service.”

The Regional Office requested a search for Mr. Capellan’s military records from

the National Personnel Records Center (NPRC) in Missouri. The NPRC is part of the

United States National Archives and Records Administration, and receives and stores

records of various types concerning persons who served in the Armed Forces. The

NPRC provided the Regional Office with the 1948 U.S. Army report, which stated that

Mr. Capellan had served with the Philippine Commonwealth Army in the service of the

United States Armed Forces from December 23, 1941 through February 28, 1942 when

he was killed in action. The Regional Office then wrote the NPRC that it had “reason to

believe that there may have been a subsequent (1950) re-certification that revoked the

1948 report.” The NPRC then provided the 1950 Army Report, the NPRC stating that

“the determination of that date (8/17/50) stands.” The record provided on this appeal

does not reflect that the VA provided the Philippine military records, or any of Mrs.

Capellan’s other evidence, to the NPRC for verification of service.

The Regional Office then denied Mrs. Capellan’s claim, stating that under 38

C.F.R. '3.203 decisions concerning verification of military service are the responsibility

of the NPRC and “are binding on the VA which has no authority to change or amend the

findings.” Although the Regional Office decision listed the evidence provided by Mrs.

Capellan, including the newly provided 1997 documents from the Philippine military

officials and other post-1950 materials, the record shows no evaluation of this evidence

by the NPRC, the Regional Office, or any United States military authority. The Regional

Office decision did not state that any of Mrs. Capellan’s post-1950 evidence had been

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2007-7236
provided to the NPRC or any other authority for review. The denial informed Mrs.

Capellan of her right to appeal, which would commence by filing a Notice of

Disagreement with the Regional Office.

Mrs. Capellan submitted a Notice of Disagreement, attaching some previously

submitted documentation from various Philippine authorities, including a document

dated March 5, 2002 from the Philippine Veterans Affairs Office stating that it certified

that Santiago Capellan “is a veteran of World War II/Philippine Revolution who served

with 1st Reg. Div. PA with the grade/rank Pvt,” that his service was in the USAFFE, and

that an Old Age Pension for his widow Fortunata Capellan based on his service was

approved on June 20, 1991. Mrs. Capellan also refiled an October 25, 1955 affidavit of

Major Jose M. Javier, the commanding officer of the “B” Company, 1st Battalion, 1st

Infantry Regiment Division, which included the following:

5. That I know officially and personally the late veteran,
SANTIAGO CAPELLAN, a reservist who reported to active duty in the
Philippine Army and was inducted into the USAFFE on or about 18
December 1941, at Camp Murphy, by an American Officer, and was
assigned to my unit (“B” Co, 1st Bn, 1st Reg Div) as filler when my unit
suffered casualties after the fierce fighting against the enemy at Mauban,
Quezon; that said veteran, Santiago Capellan, was inducted into the
USAFFE as Private;
6. That the late Pvt. Santiago Capellan had rendered continuous
service and had seen actions in Bataan where he was killed in action
during the enemy bombing of our line of resistance at Bagac, Bataan, on
or about 15 February 1942, and died instantly;

Admin. Rec. at 77.

Other evidence submitted in 2002 included a Philippine Veterans Affairs Office

list of veterans including Mr. Capellan who were entitled to shares of the Philippine

Veterans Bank, and a stock certificate from the Philippine Veterans Bank showing Mrs.

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Capellan’s status as the widow and heir of Santiago Capellan. Also resubmitted was an

affidavit, dated August 18, 1946, of both the mayor and the chief of police of the city of

Lopez, where Mr. Capellan had lived, stating that they each personally knew

Santiago Capellan, a Reservist Private who left this municipality of Lopez,
province of Tayabas, for active Military Service on December 19, 1941,
and from that time to the present time [August 18, 1946], said Reservist,
Santiago Capellan had not returned to his family.

Admin. Rec. at 78. Also resubmitted was the March 20, 1969 affidavit of two military

comrades of Mr. Capellan, Vicente Pilarca and Inocencio Anacion, who stated that they

served with Santiago Capellan in the Philippine Army at Bataan and saw him hit by

enemy bullets and killed. The affidavit states:

That we both personally know one, SANTIAGO CAPELLAN, a boyhood
friend and townmate whom we met in Bataan somewhere in Abucay, and
who told us, he was in uniform, that he was inducted into the USAFFE at
Lucena, Quezon (Tayabas) as private in "B" Co., 1st Inf. under Lt.
Cuaresma;
That in the main Japanese Offensive at Balanga, we met the said veteran
and in the haste of retreat, we chanced to be together and that while
together, he was hit by enemy bullets causing his death, his body having
been unrecovered;
That the late Private SANTIAGO CAPELLAN died in action on or about
the month of February, the date we could not recall at present, in the year
1942;
That we know the above facts because the said veteran was with us
during the critical days of the battle at Bataan and we personally saw him
hit and died of enemy bullets;

Admin. Rec. at 100.

The Regional Office held a hearing in Manila on September 10, 2002. In addition

to the documentary records, Mrs. Capellan and two family members testified that her

husband was killed in action while serving in the USAFFE. They provided a photograph

of Mr. Capellan in military uniform, and a group photo with his battalion. The Regional

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Office then denied the claim, stating that the 1950 Army Report was dispositive and that

the entirety of the evidence provided by Mrs. Capellan “cannot be accepted as proof of

military service of your deceased husband in absence of substantiating evidence in the

records of the Army.” The Regional Office did not discuss any of the evidence, and

sought no substantiation from the United States or Philippine military authorities.

Mrs. Capellan appealed to the Board of Veterans Appeals, which held that the

duties to notify and to assist should be applied, and remanded “to obtain additional

development and full compliance with the VA’s due process requirements.” On March

5, 2004 the VA Appeals Management Center wrote to Mrs. Capellan and asked her to

“Please provide us with any evidence or information you may have pertaining to your

appeal. Provide medical evidence (that you have not already submitted) that will show

that the deceased had valid military service.” The letter stated that the VA was

responsible for retrieving “[r]elevant records from any Federal agency,” and would make

reasonable efforts to get “[r]elevant records not held by a Federal agency.” Mrs.

Capellan was instructed to “give us enough information about your records so that we

can request them from the person or agency that has them.” The letter also stated: “It’s

your responsibility to make sure that we receive all requested records that aren’t in the

possession of a Federal department or agency.”

On April 24, 2004 Mrs. Capellan replied to the Appeals Management Center and

referred to the evidence in her file, pointing to the affidavits from persons who knew Mr.

Capellan and witnessed his military service and saw his death in action at Bataan. She

stated that his body was never recovered, and that there was thus no medical evidence

of his death. The Appeals Management Center then denied her claim, stating that “[t]he

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“evidence clearly indicates that Santiago A. Capellan has no recognized guerrilla

service, nor was he a member of the Commonwealth Army of the Philippines in the

service of the Armed Forces of the United States.” The decision did not discuss any of

Mrs. Capellan’s evidence, and it appears that the Center relied solely on the 1950 U.S.

Army Report in reaching its conclusion, stating that “substantial evidence” to refute this

conclusion had not been submitted. The Center did not say how or if the Center had

assisted, although it stated that a March 2003 letter met the VA’s duty to notify the

claimant of her rights.

Mrs. Capellan appealed to the Board, and summarized the material she had

submitted as follows:

It is not only the Affidavits of Lucia V. Almacha and Natividad C.
Escobido [relatives] that were submitted. But many other documents that
substantiated my claim and considered as New and Material Evidences.
Some of the material evidences are as follows:
1. Affidavit of Mr. Vicente Pilarca.
An eyewitness that my husband in Uniform as a USAFFE
participated in the Battle of Bataan.
2. Inocencio Anacion
Comrades-in-arms and eyewitness that my husband in
uniform of the USAFFE was killed in action in Bataan.
3. Masterlists of the Shareholders of Stock Certificate of the Philippine
Veterans Bank, owned by the World War II Veterans.
4. Certification of Military Service from the Non-Current Branch Office
Division, Gen. Headquarters, AFP, Camp Gen. Emilio Aguinaldo,
Quezon City, Philippines.
5. Certification of Salaries and Allowances received during the World
War II, as a Backpay from the Gen. Headquarters, Camp Gen.
Emilio Aguinaldo, Quezon City, Philippines.
6. Certification from the Phil. Veterans Affairs Office of my husband's
Military Service during World War II.
7. Affidavit of Mr. Jose M. Javier, during their Defense of Bataan,
together with my husband.
8. Picture of my husband during their USAFFE training in Port Area,
Manila, Philippines, in uniform. His picture is with a check.

Admin. Rec. at 159-160.

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 On March 25, 2005 the Board denied Mrs. Capellan's claim, stating that none of

the evidence she submitted could be considered because none of it was a “document

issued by a U.S. Service Department,” quoting 38 C.F.R. '3.203. The Board cited Duro

v. Derwinski, 2 Vet. App. 530 (1992), which held that the “VA 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 in the U.S. Armed Forces.” Id. at 532. She was informed of the right to appeal

to the Veterans Court.

With her appeal to the Veterans Court, Mrs. Capellan again pointed to the

evidence from the Philippine military authorities and others attesting to her husband's

military service and to his death at Bataan. She stated that a thorough investigation by

the Philippine Judge Advocate General’s Office in 1947 had determined that Mr.

Capellan had served and was killed in action, and provided the additional information

that had been before the Board. She stated that it was known that Philippine military

personnel were not fully recorded in the NPRC archives, citing specific examples, and

that these records were especially deficient as to Philippine personnel killed in the war.

In the Veterans Court, the VA acknowledged Mrs. Capellan’s evidence, including

the certification of her husband’s military status from the Philippine Armed Forces, but

argued that there was a “plausible basis” for the Board’s decision in light of the

evidentiary requirements of 38 C.F.R. §3.203. The Veterans Court ruled that the VA is

bound by the United States Army’s 1950 report, and that none of the subsequent

evidence could be considered because it was not issued by a United States military

service department. The Veterans Court cited Duro, 2 Vet. App. at 532, and Soria v.

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Brown, 118 F.3d 747, 749 (Fed. Cir. 1997), where the Federal Circuit observed that

“Philippine veterans are not eligible for veterans’ benefits unless a United States service

department documents or certifies their service.” Subsequent cases have recognized

that the Soria decision preceded the enactment in 2000 of the statutory duty to assist.

See Palor v. Nicholson, 21 Vet. App. 325, 330-31 (2007) (discussing effect of Veterans

Claims Assistance Act on Soria decision).

DISCUSSION

The record does not show any request by any VA authority for service

department review of any of the documents provided by Mrs. Capellan as she

proceeded, over the years, in the Regional Office and the Board of Veterans Appeals

and the Veterans Court — although 38 C.F.R. '3.203(c) states that the VA “shall

request verification of service from the service department”:

38 C.F.R. '3.203 Service records as evidence of service and character of
discharge.
(a) Evidence submitted by a claimant. For the purpose of establishing
entitlement to pension, compensation, dependency and indemnity
compensation or burial benefits the Department of Veterans Affairs may
accept evidence of service submitted by the 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. . . .
....
(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. . . .

Section 3.203 is a general evidentiary rule; it contains no special provisions concerning

Philippine military service as recognized under 38 U.S.C. §107(a). Thus section

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3.203(c) requires verification of service from the service department whenever a

claimant lacks the kind of official evidence specified in section 3.203(a). The reports of

all of the tribunals in the records provided to us show that they treated the 1950 Army

Report as dispositive because it was the last review by the Army. While this 1950 Army

Report was located by the NPRC in response to a specific VA search request in 2001,

after the first VA search request had turned up only the 1948 Army Report, the record

does not show that the VA ever provided any of Mrs. Capellan’s post-1950 evidence to

the Army or to the NPRC. Mrs. Capellan argues that this rejection of her claim without

review of all the evidence did not comport with the VA’s duty to assist her, and the

obligation to afford her claim the benefit of the doubt based on all the evidence. The

provision by the NPRC of the Reports in its archives does not constitute review of all the

evidence related to military service.

The “duty to assist,” 38 U.S.C. '5103A; 38 C.F.R. §3.159, although mentioned by

the VA, does not appear to have been invoked to provide agency assistance in

procuring the requisite “verification of service from the service department.” Similarly,

the “benefit of the doubt” statute, 38 U.S.C. §5107(b), was ruled inapplicable by the

Veterans Court because the court stated that the evidence was not in equipoise. The

Veterans Court, like the Board, interpreted 38 C.F.R. §3.203(c) to negate consideration

of the post-1950 evidence submitted by the claimant. This interpretation of section

3.203(c), relied on by the Veterans Court and the VA, is incorrect in light of the legal

requirements of assistance to claimants.

The “duty to assist” statute and regulations apply to all evidence needed to

substantiate a claim. The VA’s obligation includes assisting the claimant in developing

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her claim by making “as many requests as are necessary to obtain relevant records

from a Federal department or agency.” 38 C.F.R. §3.159(c)(2). In this case, it is not

explained how this duty was met, for, according to the record, service department

consideration was not requested for any evidence that Mrs. Capellan provided after

1950. The Veterans Court has interpreted section 3.203(c) consonant with the current

duty to assist, stating that “when a claimant submits evidence establishing that the

service department’s certification was based upon erroneous information, a second

certification may be required.” Laruan v. West, 11 Vet. App. 80, 82 (1998) (en banc),

overruled on other grounds by D’Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000).

Similarly, in Padilla v. Nicholson, No. 05-2518, 2007 WL 412356, at *2 (Vet. App. Jan. 3,

2007) the Veterans Court held that the Board erred in relying on an earlier NPRC record

rather than submitting the new evidence concerning the claimed military service. The

court stated: “When new identifying information is provided by the appellant, the

Secretary ‘shall request verification of service from the service department.’” Id. (quoting

38 C.F.R. §3.203(c)). See also Dela Cruz v. Nicholson, No. 04-137, 2005 WL 3057877,

at *3 (Vet. App. Oct. 21, 2005) (applying duty to assist where it was unclear whether the

proper form had been used to obtain an affidavit from the Philippine Army in connection

with a request for verification of service). In Sarmiento v. Brown, 7 Vet. App. 80 (1994),

overruled on other grounds by D’Amico, 209 F.3d at 1227, the Veterans Court stated

that “there is no stated limit on the number of times that the Secretary ‘shall’ request

service department verification when one claiming entitlement fails to submit qualifying

evidence of service.” Id. at 85. We conclude that the correct interpretation of the

governing statutes and regulations requires that a claimant’s new evidence be

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submitted and considered in connection with a request for “verification of service from

the service department” pursuant to 38 C.F.R. §3.203(c).

The “benefit of the doubt” statute, 38 U.S.C. §5107(b), and the analogous

“reasonable doubt” regulation, 38 C.F.R. §3.102, apply to all material issues relating to

a claim, including verification of military service. See Kelly v. Nicholson, 463 F.3d 1349,

1354 (Fed. Cir. 2006) (stating that 38 U.S.C. §5107(b) “applies not only to decisions

relating to the overall merits of a claim, but by its plain language it applies to all

decisions determining any material issue relating to a claim”). The VA argues that these

provisions are outside our appellate jurisdiction because they relate to the weighing of

evidence, which is excluded from our review by 38 U.S.C. §7292(d)(2). We agree that

the weighing of evidence is not within our appellate authority. However, when statute

and regulation require that the veterans’ tribunals weigh the evidence, our authority

includes assuring that the evidence is weighed under the appropriate statutes and

regulations. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)

(Federal Circuit has jurisdiction to review interpretation of the benefit of the doubt rule

and other legal provisions). Both the statute and the regulation explicitly require the

consideration of all evidence submitted by the claimant. See 38 U.S.C. §5107(b) (“The

Secretary shall consider all information and lay and medical evidence of record in a

case before the Secretary with respect to benefits under laws administered by the

Secretary.”); 38 C.F.R. §3.102 (“When, after careful consideration of all procurable and

assembled data, a reasonable doubt exists regarding service origin, the degree of

disability, or any other point, such doubt will be resolved in favor of the claimant.”). The

reasonable doubt regulation by its terms applies “even in the absence of official records,

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particularly if the basic incident allegedly arose under combat, or similarly strenuous

conditions, and is consistent with the probable results of such known hardships.” 38

C.F.R. §3.102. In accordance with 38 C.F.R. §3.203(c), the agency is required to

ensure consideration of “all procurable and assembled data,” including lay evidence, in

connection with a request for “verification of service from the service department.”

38 C.F.R. §3.203 requires that Mr. Capellan’s military service be determined

based on all relevant evidence, with due application of the duty to assist, 38 U.S.C.

§5103A; 38 C.F.R. §3.159, and the statutory and regulatory requirements to consider

“all information and lay . . . evidence of record,” 38 U.S.C. §5107(b); see also 38 C.F.R.

§3.102. The VA erred in denying Mrs. Capellan’s claim based on the archival 1950

Army Report, while obtaining no review of the subsequent evidence by the service

department. We vacate the decision of the Veterans Court, and remand for

determination, on the entirety of the evidence, of Mr. Capellan’s military service.

VACATED AND REMANDED

17
2007-7236
 United States Court of Appeals for the Federal Circuit
2007-7236

FORTUNATA CAPELLAN,

Claimant-Appellant,

v.

JAMES B. PEAKE, M.D.,
Secretary of Veterans Affairs,

Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in Case No. 05-
1990, Chief Judge William P. Greene, Jr.

SCHALL, Circuit Judge, concurring.

The court holds that the Department of Veterans Affairs (“VA”) failed to comply

with the duty to assist because it did not furnish the Department of the Army with the

material provided by Mrs. Capellan in support of her claim and did not request from the

service department, pursuant to 38 C.F.R. § 3.203(c), verification of the military service

of her husband, Santiago Capellan. Based upon its holding, the court remands the

case to the Court of Appeals for Veterans Claims (“Veterans Court”) for further

proceedings. In that regard, the final paragraph of the opinion reads as follows:

38 C.F.R. §3.203 requires that Mr. Capellan’s military service be
determined based on all relevant evidence, with due application of the
duty to assist, 38 U.S.C. §5103A; 38 C.F.R. §3.159, and the statutory and
regulatory requirements to consider “all information and lay . . . evidence
of record,” 38 U.S.C. §5107(b); see also 38 C.F.R. 3.102. The VA erred in
denying Mrs. Capellan’s claim based on the archival 1950 Army Report,
while obtaining no review of the subsequent evidence by the service
department. We vacate the decision of the Veterans Court, and remand
for determination, on the entirety of the evidence, of Mr. Capellan’s military
service.
 I agree that the VA failed to comply with the duty to assist. I also agree that a

remand is necessary. I write separately, however, to express my view that the only

appropriate remand in this case is a remand in which the Veterans Court directs the VA

to request verification, pursuant to 38 C.F.R. § 3.203(c), of Santiago Capellan’s military

service and in which the Veterans Court directs the VA to provide the service

department with all the material submitted by Mrs. Capellan in support of her claim. Any

other remand activity by the Veterans Court beyond this would, in my view, be contrary

to this court’s decision in Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). After the

service department acts on the request for verification, the VA will be in a position to

rule on Mrs. Capellan’s claim.

2007-7236 2