Juliet T. Tagupa v. Robert A. McDonald

27 Vet. App. 95, 2014 U.S. Vet. App. LEXIS 1455, 2014 WL 4199213
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 26, 2014
Docket11-3575
StatusPublished
Cited by12 cases

This text of 27 Vet. App. 95 (Juliet T. Tagupa v. Robert A. McDonald) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Juliet T. Tagupa v. Robert A. McDonald, 27 Vet. App. 95, 2014 U.S. Vet. App. LEXIS 1455, 2014 WL 4199213 (Cal. 2014).

Opinions

DAVIS, Judge:

Juliet T. Tagupa, surviving spouse of Luis T. Tagupa, appeals through. counsel from an August 2, 2011, Board of Veterans’ Appeals (Board) decision that denied her VA benefits because her husband did not have qualifying military service to establish status as a veteran of the U.S. Armed Forces. The Court previously affirmed the Board’s decision denying benefits in a May 31, 2013, single judge decision. Tagupa v. Shinseki, No. 11-3575, 2013 U.S. Vet.App. LEXIS 863 (May 31, 2013) (mem. dec.). However, the Cqurt granted Mrs. Tagupa’s motion for reconsideration and submitted the appeal to a panel of the Court to determine whether the National Personnel Records Center (NPRC) constitutes a service department for purposes of verifying service under 38 C.F.R. § 3.203(c) (2014). Tagupa v. Shin-seki No. 11-3575, 2013 U.S. Vet.App. 1223 (July 25, 2013) (order).

For the following reasons, the Court will deny Mrs. Tagupa’s motion for leave to submit supplemental evidence, and will withdraw its May 31, 2013, decision and issue this panel decision in its. stead. The Court holds that it cannot determine, on the record as submitted, whether the Department of the Army has delegated the authority to make service decisions to the National Archives and Records Administration (NARA), or its agency, the NPRC, for purposes of verifying service under § 3.203(c). Therefore, absent evidence of a statutorily delegated duty, the plain meaning of VA’s regulation requires verification of service from the relevant service department. Accordingly, the Court will set aside the August 2011 Board decision [97]*97and remand the matter for VA to seek verification of Mr. Tagupa’s service from the Department of the Army,

I. BACKGROUND

Mr. Tagupa died in 1993. In December 2008, Mrs. Tagupa filed an application for VA benefits based on her late husband’s World War II military service. Because Mr. Tagupa’s name was not on the “Reconstructed Recognized Guerrilla Roster,” the Manila, Philippines, regional office (RO) requested verification of his service from the NPRC,1 using the service number 47020. Record (R.) at 159. NPRC’s May 2009 stamped response noted that Mr. Ta-gupa “has no service as a member of the Philippines Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.” Id. The record reflects that on June 9, 2009, the RO submitted a second request to NPRC for service verification of Mr, Tagu-pa’s service and on June 19, 2009, the RO denied Mrs. Tagupa’s claim for benefits. R. at 113, 159. NPRC’s August 2009 response to the second verification request contained a negative stamped response identical to the first response. R. at 155.

In her Notice of Disagreement (NOD) to the June 2009 RO decision, Mrs. Tagupa submitted evidence of her husband’s service, including an identification card from the “Anderson Fil-American Guerrillas,” issued to Luis Tabac Tagupa, with the number “147020” on the front of the card. R. at 114. This card states that Mr. Tagu-pa actively participated in the anti-Japanese resistance movement in the Philippines from March 4,1942, until September 27, 1945, when he was honorably discharged. R. at 115. In addition to this document, Mrs. Tagupa submitted affidavits from two of her husband’s comrades, who attested to his service, and a certificate recognizing and thanking Mr. Tagupa for his service “in the Armed Forces of the United States,” which bears the signature of President Barack Obama. R. at 87.

VA continued to deny Mrs. Tagupa benefits in a February 2010 Statement of the Case (SOC) and a March 2010 Supplemental SOC because her husband had no qualifying military service. After filing an appeal to the Board, Mrs. Tagupa informed the RO that its requests for verification from NPRC used the number “47020” rather than “147020.” R. at 50. On October 13, 2010, the RO submitted a third request for service verification to NPRC using number “147020,” and also included the Anderson Fil-American Guerrillas identification card and the affidavits from Mr. Tagupa’s comrades attesting to his service. On October 20, 2010, Mrs. Tagu-pa sought information from NARA about her late husband’s military service by completing a form and noting that her husband separated from service in September 1945 at “Army Forces 48 LGF, Luzon Guerilla.” R. at 42. VA received a copy of Mrs. Tagupa’s completed NARA form on November 22, 2010-10 days after NPRC responded to VA’s third verification request — by indicating the submitted information did not warrant a change in its prior negative verification. R. at 48.

II. ARGUMENTS OF THE PARTIES

Mrs. Tagupa argues that VA failed to comply with 38 C.F.R. § 3.203(c), when it sought verification of Mr. Tagupa’s service as a guerrilla working with the U.S. Armed Forces in the Philippines from the NPRC rather than the service department. She asserts that the NPRC does not have [98]*98the relevant Philippine records. She argued in her brief that it is possible the relevant records were destroyed in the 1973 fire at NPRC’s facility in St. Louis; however, at oral argument she conceded that the fire of 1973 did not destroy Philippine records.

In response, the Secretary asserts that NPRC operates as an agent of the Department of the Army, maintains the relevant Philippine records, and has the authority to make service department determinations. As support for NPRC’s authority to make service department determinations, the Secretary submitted a 1998 memorandum of agreement (MOA) between the Department of the Army and NARA, a document not before the Board in August 2011. In this agreement, the Department of the Army purported to transfer “responsibility for providing reference services on the collection of Philippine Army files and archives holdings” to NARA indefinitely. See Secretary’s (Sec.) Response (Resp.) to Court’s July 2013 Order, Exhibit A.

In response to the MOA, Mrs. Tagupa filed a motion for leave to submit supplemental evidence should the Court take judicial notice of the MOA. The supplemental information Mrs. Tagupa sought to admit was a July 9, 2013, White House blog posting entitled “Recognizing the Extraordinary Contribution of Filipino Veterans.” This blog article discussed the work of the Filipino Veterans Equity Compensation Fund Interagency Working Group-comprising VA, the Department of Defense, and NARA-and contained statements on the duties of the NPRC. Specifically, the blog stated that the NPRC does not make service determinations. See Appellant’s Motion for Leave to Submit Supplemental Evidence at 6.

Mrs. Tagupa also contends that the Board should have found veteran status under 38 C.F.R. § 3.203(a), because the Anderson Fil-American Guerrillas identification card identifies her husband by name and states on its face that his military group is recognized by the “U.S.A. government.” R. 114. She furthermore asserts that the Board violated Capellán, supra note 1, by failing to submit another request to NPRC after she provided her husband’s place of separation from service. She also contends that the Board erred in relying on negative responses from the NPRC because these responses did not address whether Mr.

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Bluebook (online)
27 Vet. App. 95, 2014 U.S. Vet. App. LEXIS 1455, 2014 WL 4199213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/juliet-t-tagupa-v-robert-a-mcdonald-cavc-2014.