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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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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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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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