Juliet T. Tagupa v. Robert A. McDonald

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 11-3575

JULIET T. TAGUPA, APPELLANT,

v.

ROBERT A. MCDONALD,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued April 2, 2014 Decided August 26, 2014)

David E. Boelzner, of Richmond, Virginia, for the appellant.

Brandon A. Jonas, with whom Will A. Gunn, General Counsel; R. Randall Campbell,

Assistant General Counsel; Nisha C. Hall, Deputy Assistant General Counsel; and Michele

Russell Katina, all of Washington, D.C., were on the brief for the appellee.

Before KASOLD, Chief Judge, and MOORMAN and DAVIS, Judges.

DAVIS, Judge, filed the opinion of the Court. KASOLD, Chief Judge, filed an opinion

concurring in part and dissenting in part.

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 Court 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. Shinseki, 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 and 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 Manilla, 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. Tagupa "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. Tagupa'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 "1 47020" on the front of the card. R.

at 114. This card states that Mr. Tagupa actively participated in the anti-Japanese resistance

movement in the Philippines from March 4, 1942, until September 27, 1945, when he was honorably

1

NPRC is a part of NARA, "and receives and stores records of various types concerning persons who served

in the Armed Forces." Capellan v. Peake, 539 F.3d 1373, 1376 (Fed. Cir. 2008).

2

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. Tagupa 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 the 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

3

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 Capellan, 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. Tagupa's guerrilla service could have been with unrecognized

guerrillas.

III. ANALYSIS

"Generally, '[i]n order to qualify for VA benefits, a claimant . . . or the party upon whose

service the claimant predicates the claim . . . [must be] a "veteran.'"' Donnellan v. Shinseki,

24 Vet.App. 167, 170-71 (2010) (quoting Cropper v. Brown, 6 Vet.App. 450, 452 (1994)). A

"veteran" is "a person who served in the active military, naval, or air service," and was discharged

under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d) (2014). In July

1941, President Roosevelt placed the military forces of the Philippines in the service of the U.S.

Armed Forces of the Far East, and members of the Philippine forces who fought against the Japanese

or who fought as guerrillas during the Japanese occupation may be eligible for certain veteran's

4

benefits from the United States. See Capellan, 539 F.3d at 1375; see also 38 U.S.C. § 107 (detailing

the Philippine service veterans and the types of benefits to which such veterans are entitled);

38 C.F.R. §§ 3.40 (allowing dependency and compensation and burial benefits for Philippine

guerrilla service), 3.203 (detailing the general evidentiary requirements for proving veteran status)

(2014).

A. Plain Language of the Regulation

The "interpretation of a statute or regulation is a question of law," Lane v. Principi, 339 F.3d

1331, 1339 (Fed. Cir. 2003), and our review is performed de novo, Kent v. Principi, 389 F.3d 1380,

1384 (Fed. Cir. 2004). To discern the meaning of a regulation, the Court begins with the plain

language of the regulation. Cf. Perrin v. United States, 444 U.S. 37, 42 (1979) ("We begin with the

language of the . . . Act itself."); Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994) (noting that

the canons of statutory interpretation apply to interpreting regulations), superseded by statute as

stated in Samish Indian Nation v. United States, 419 F.3d 1355 (Fed. Cir. 2005). "If the meaning

of the regulation is clear from its language, then that is 'the end of the matter.'" Tropf v. Nicholson,

20 Vet.App. 317, 320 (2006) (quoting Brown v. Gardner, 513 U.S. 115, 120 (1994)).

At issue is the language of 38 C.F.R. § 3.203, the evidentiary regulation for proving service,

which provides in pertinent part:

(a) Evidence submitted by a claimant. For the purpose of establishing entitlement to

. . . dependency and indemnity compensation or burial benefits the Department of

Veterans Affairs may accept evidence of service submitted by a 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. A copy of an

original document is acceptable if the copy was issued by the service department or

if the copy was issued by a public custodian of records who certifies that it is a true

and exact copy of the document in the custodian's custody or, if the copy was

submitted by an accredited agent, attorney or service organization representative who

has successfully completed VA-prescribed training on military records, and who

certifies that it is a true and exact copy of either an original document or of a copy

issued by the service department or a public custodian of records; and

(2) The document contains needed information as to length, time and character of

service; and

5

(3) In the opinion of the Department of Veterans Affairs the document is genuine and

the information contained in it is accurate.

****

(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.

38 C.F.R. § 3.203.

Subsection (a) of the regulation uses the term "may" and thus gives VA discretion to

determine whether the evidence submitted to establish service is itself sufficient, without additional

service department verification. See Willis v. Brown, 6 Vet.App. 433, 435 (1994) (using the word

"may" in a statute makes action discretionary); see also Stewart v. Brown, 10 Vet.App. 15, 18 (1997)

(noting that an action is committed to the discretion of the Secretary where regulation uses word

"may"). However, VA has imposed three specific conditions on its use of this discretion: (1) The

document in question is issued by a service department; (2) the document contains specified

information; and (3) in VA's opinion, the document is genuine. Thus, rigid requirements restrict

VA's discretion. In subsection (c), the word "shall" requires that VA request service verification

from the service department when either a claimant submits no evidence of service or VA determines

that the evidence submitted does not satisfy the requirements of subsection (a). See Lexecon Inc. v.

Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) ("[T]he mandatory 'shall[]' . . .

normally creates an obligation impervious to . . . discretion." (citing Anderson v. Yungkau, 329 U.S.

482, 485 (1947))). Interpreting this language, the Court has held that the regulation prohibits VA

from finding that a person served in the U.S. Armed Forces based on anything other than a document

issued by a service department or verification by a service department. Duro v. Derwinski, 2

Vet.App. 530, 532 (1992). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit)

recognized that "VA has long treated the service department's decision on [verification] as

conclusive and binding." Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Accordingly, the

plain language of the regulation and caselaw have determined that the entity in the best position to

verify service is the appropriate service department and VA's acceptance of any service department

6

document, without further verification by the service, is limited and discretionary under § 3.203(a).

Although each service department is charged with making binding service department

determinations, Congress permits some Government officials to authorize the "Archivist to certify

to facts and to make administrative determinations on the basis of records transferred to the

Archivist, notwithstanding any other law." 44 U.S.C. § 3104; see also 44 U.S.C. § 4102

(establishing NARA and placing it under the supervision of "the Archivist"). After the promulgation

of § 3.203 and Duro and Soria, the Department of the Army executed the 1998 MOA with NARA

that assigned the responsibility of "providing reference service on the collection of Philippine Army

files and archival holdings." Sec. Resp. to Court's July 2013 Order, Exhibit A, at 1. As previously

stated, the Secretary submitted this MOA directly to the Court as proof that the Department of the

Army has delegated its authority to make service department determinations to NARA. Because the

MOA was not in evidence in the proceedings before VA, the Court must first determine whether it

may take judicial notice of the document.

Generally, the Court is precluded from considering evidentiary material that is not contained

in the record on appeal, see Kyhn v. Shinseki, 719 F.3d 572 (Fed. Cir. 2013); however, the Court may

take judicial notice of facts not subject to reasonable dispute if such facts are generally known or are

"capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably

be questioned." FED. R. EVID. 201(b); see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 302 (2008)

(noting that, while the Federal Rules of Evidence are not binding on the Court or on the Board, "the

rules on expert witness testimony provide useful guidance"); see also AZ v. Shinseki, 731 F.3d 1303,

1316 (Fed. Cir. 2013) (agreeing with this Court that the Federal Rules of Evidence "offer useful

guidance").

The Court will take judicial notice of the existence of the MOA between the Department of

the Army and NARA. See FED. R. EVID. 201(b); see also United States v. Herrera-Ochoa, 245 F.3d

495, 501 (5th Cir. 2001) ("An appellate court may take judicial notice of facts, even if such facts

were not noticed by the trial court."); Mills v. Denver Tramway Corp., 155 F.2d 808, 812 (1946)

("Whether an appellate court will for the first time take judicial notice of a judicially notable fact

rests largely in its own discretion."). Based on the provisions in the MOA, however, it is unclear

whether the MOA assigns to NARA the authority to make administrative determinations verifying

7

service or assigns to NARA the duties to act simply as a reference librarian. For example, the

MOA's paragraph 6(a) describes NARA's mission as (1) processing inquiries from VA involving

benefits due to Philippine Army or Guerrilla personnel, (2) responding to requests from Filipinos or

their next of kin concerning service in the Philippine Commonwealth Army and recognized

guerrillas, (3) searching the Philippine Army files and archives, (4) furnishing personnel folders

from among other things, guerrilla rosters, and (5) preparing final replies to Freedom of Information

Act cases. See Sec. Resp., Exhibit A, at 2-3. In paragraph 8(a)(2), however, the MOA expressly

states that the Department of the Army retains the responsibility "to respond to requests involving

decisions or determinations that can only be made by the legal custodian of the records (e.g.,

Freedom of Information Act denials, litigation)." Id. at 4.

The ambiguous language of the MOA precludes the Court from finding that the Department

of the Army delegated its duty to make administrative determinations verifying service to NARA,

or its agency, NPRC. Absent evidence of delegation to NPRC of the service department's authority

to determine qualifying service, the plain mandatory language of VA's regulation controls. That

language clearly states that, when VA has determined that evidence of service does not comply with

subsection (a), VA "shall request verification of service from the service department." 38 C.F.R.

§ 3.203(c) (emphasis added); See Tropf, 20 Vet.App. at 320 (concluding that if the meaning of

regulation is clear, that ends the matter). Because this language is clear, the Court will remand the

case to VA to seek verification of Mr. Tagupa's service with the Department of the Army.

The Court declines to take judicial notice of Government websites referenced by the parties,

or of the White House blog referenced by Mrs. Tagupa that stated that the NPRC does not make

service determinations. This information was not before the Board and contains potentially

conflicting information as to whether NPRC can act as an agent of the service department for the

purpose of making service determinations, and raises questions concerning the records in the

Philippine archives housed at NPRC. See FED. R. EVID. 201 (allowing a court to take judicial notice

of a fact not subject to reasonable dispute).

B. Duty To Assist

In addition to VA's duty to seek verification from the service department under § 3.203, VA

also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including

8

establishing veteran status. 38 U.S.C. § 5103A(a)(1); Canlas v. Nicholson, 21 Vet.App. 312, 316

(2007). This duty includes making reasonable efforts to obtain all records held by a governmental

entity that are relevant to the claim and that pertain to the claimant's military service if the claimant

provides the Secretary information sufficient to locate such records. 38 C.F.R. § 3.159(c)(2) (2014).

To that end, VA is required to make as many requests as necessary to obtain records from Federal

agencies. VA may discontinue its efforts to obtain records from a Federal department or agency only

when it concludes that continued efforts would be futile, which requires that the Federal department

or agency advise VA that either the requested documents do not exist or that the custodian does not

have them. Id. In determining that continued efforts would be futile, the Secretary must notify the

veteran of the records VA was unable to obtain, explain the efforts VA made to obtain those records,

and describe any further action VA will take with respect to the claim. See 38 U.S.C. § 5103A(b)(2).

Consistent with VA's duty to assist, the Federal Circuit has held that to establish service the

service department must review and consider the documentary evidence submitted. Capellan, 539

F.3d at 1382-83. The Federal Circuit also declared that "[t]he provision by the NPRC of the Reports

in its archives does not constitute review of all the evidence related to military service." Id. at 1380

(emphasis added). Here, VA forwarded information to NPRC along with its service verification

requests, but after receiving NPRC's negative responses did nothing more to verify Mr. Tagupa's

service. According to VA's adjudication manual, when the standard means of service verification

prove unsuccessful, VA instructs ROs to attempt to seek alternative means of verifying service by

establishing service from, among other sources, the Social Security Administration, State historical

commissions, Federal or State offices of personnel management, current or former employers, U.S.

Railroad Retirement Board, county courthouses, and rosters or registers published by States that list

veterans who served in World War I, World War II, and the Korean Conflict. VA ADJUDICATION

PROCEDURES MANUAL, pt. III, subpt. iii, ch. 2, sec. E.30.b.

In Canlas, the Court expressly left open the question whether VA's duty to assist requires VA

to obtain records where the NPRC had already provided a negative service verification. 21 Vet.App.

at 317-18. From its prior decisions as well as decisions from the Federal Circuit, the Court

recognizes that "NPRC" and "the service department" are used interchangeably; however, in these

decisions the question whether NPRC may under § 3.203(c) be a substitute for the service

9

department was not an issue before the Court. See e.g., Capellan, supra note 1; Palor v. Nicholson,

21 Vet.App. 325 (2007); Canlas, supra. Because the Court is remanding the matter for VA to seek

verification of Mr. Tagupa's service from the Department of the Army, it is premature to determine

whether the duty to assist requires VA to conduct additional development if the Department of the

Army provides a negative verification response.

C. Reasons or Bases for Rejecting Evidence of Service

In attempting to prove her husband's service with the U.S. Armed Forces during World War

II, Mrs. Tagupa submitted an Anderson Fil-American Guerrillas identification card bearing the

number "14720" and containing the notation that this group was "[r]ecognized by the "U.S.A.

Government." R. at 114. The identification card lists Mr. Luis T. Tagupa's rank as sergeant with

the 11th Sampta Regiment, Division I, and certifies that he actively participated in the anti-Japanese

resistance movement in the Philippines, enlisting in March 4, 1942 and receiving an honorable

discharge on September 27, 1945. R. at 84. Mrs. Tagupa also submits an affidavit from Angel

Fagel, who states that he served with her husband when they actively participated in the anti-

Japanese resistance movement, and an affidavit from Rodolfo de leon Soriano, who attests that Mr.

Tagupa worked as a "U.S. Air Force Observer," in the "125 H Regimen 45h Battalion, 6th Division."

R. at 116, 154. Finally, Mrs. Tagupa submits as evidence of her husband's service an undated

certificate honoring and recognizing the service of Luis Tabag Tagupa in the Armed Forces of the

United States, purportedly signed by President Barack Obama. R. at 87.

Although the documents offered as evidence of Mr. Tagupa's service do not qualify as a DD

Form 214, a Certificate of Release or Discharge from Active Duty, or an original Certificate of

Discharge, as set forth in subsection (a) of the regulation, Mrs. Tagupa argues that the identification

card constitutes a U.S. service document because it was issued by the Anderson Fil-American

Guerrillas, a group that identified itself as recognized by the U.S. government. And, the

identification card on its face provides the time, length, and character of Mr. Tagupa's service.

The Board noted the documents Mrs. Tagupa submitted and tersely stated that "the

information and evidence submitted . . . may not be accepted as verification . . .that [Mr. Tagupa]

had active service." R. at 8. Although VA exercised its regulatory discretion to reject Mrs. Tagupa's

documents purporting to establish her husband's service, it provided no reasons for rejecting

10

evidence that, on its face, appears to be evidence supporting service. Thompson v. Gober, 14

Vet.App. 187, 188 (2000) (holding that the Board must provide an adequate statement of reasons or

bases "for its rejection of any material evidence favorable to the claimant"); Allday v. Brown, 7

Vet.App. 517, 527 (1995) (Board's statement "must be adequate to enable a claimant to understand

the precise basis for the Board's decision, as well as to facilitate review in this Court"). Because the

Board provided an inadequate statement of reasons for rejecting favorable evidence, remand is

warranted. Tucker v. West, 11 Vet.App. 369, 374 (1998) (finding remand appropriate where the

Board has, inter alia, failed to provide an adequate statement of reasons or bases).

D. Capellan Violation

Mrs. Tagupa also argues that the Board erred in failing to submit another request for

verification from NPRC after she submitted information regarding her husband's place of separation

from service. In Capellan the Federal Circuit held "that a claimant's new evidence [must] be

submitted and considered in connection with a 'verification of service request from the service

department.'" 539 F.3d at 1381 (quoting 38 C.F.R. § 3.203(c)). Moreover, there is no limit on the

number of requests that VA shall make to the service department for service verification when a

claimant fails to submit qualifying evidence of service. Sarmiento v. Brown, 7 Vet.App. 80, 85

(1994), overruled on other grounds by D'Amico v. West, 209 F.3d. 1322, 1327 (Fed. Cir. 2000). In

light of the remand for VA to seek verification of service from the Department of the Army, this

argument is now moot. In complying with this remand, VA should ensure that this new evidence

is submitted in connection with the verification request to the Department of the Army.

E. Unrecognized Guerrilla Service

The Board denied Mrs. Tagupa's benefits based on NPRC's reply to VA's multiple requests

for information stating that Mr. Tagupa had "no service as a member of the Philippine

Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed

Forces." R. at 48, 155, 159. However, VA received no information from NPRC about whether Mr.

Tagupa served as a member of an unrecognized guerrilla group. See 38 U.S.C. § 107; 38 C.F.R.

§ 3.40 (d) (2) (ii) (defining "unrecognized guerilla service" as "service under a recognized

commissioned officer only if the person was a former member of the United States Armed Forces

(including the Philippine Scouts), or the Commonwealth Army") (2013); VA ADJUDICATION

11

PROCEDURES MANUAL, pt. III, subpt. iv, ch. 4, sec. B. 4.6.d (recognizing that service in a "guerrilla

unit under the command of a commissioned officer of the U.S. Armed Forces (including the Regular

Philippine Scouts or in the Philippine Army) will be certified by the service department as

'Unrecognized guerrilla service under . . . ' . . . by naming the officer and, if the officer was a

member of the Philippine Army, giving the officer's rank and organization").

In its decision, the Board mentioned that service department certifications may establish

unrecognized guerrilla service, which is qualifying service for VA compensation benefits. R. at 5

(noting that § 3.40 (d)(2) includes unrecognized guerrilla service and that this is service "under a

recognized commissioned officer, who was a former member of the U.S. Armed Forces or the

Commonwealth Army"). However, the Board's analysis failed to address the possibility that Mr.

Tagupa served in an unrecognized guerrilla unit during World War II. Therefore, the Board provided

an inadequate statement of reasons or bases for its decision, which frustrates judicial review and

necessitates remand. Allday and Tucker, both supra.

III. CONCLUSION

For the reasons stated above, the Court WITHDRAWS its May 31, 2013, decision, DENIES

Mrs. Tagupa's motion for leave to submit supplemental evidence, SETS ASIDE the Board's August

2, 2011, decision, and REMANDS the matter for VA to seek verification of service from the

Department of the Army.

KASOLD, Chief Judge, concurring in part and dissenting in part: I fully agree that remand

is warranted so that the Secretary can seek verification of Mr. Tagupa's service from the Department

of the Army, as required by his regulation. I note, however, that I find the MOA clear in that the

NPRC provides a reference service only; it may certify service department determinations in the

record, but it lacks the authority to issue a service department determination that is not otherwise

contained in the records it maintains. I also agree that the Board provided an inadequate statement

of reasons or bases regarding whether Mr. Tagupa served in an unrecognized guerrilla unit during

World War II.

I do not, however, agree with the majority's determination that the Board provided no reasons

12

for rejecting the documents submitted by Mrs. Tagupa for purposes of verifying service under 38

C.F.R. § 3.203(a). To the contrary, the Board addressed the documents Mrs. Tagupa submitted as

support that her husband served with the U.S. military and found that none of the documents were

official service department documents that meet the requirements of 38 C.F.R. § 3.203(a). Based

on the record of proceedings, the Board's finding is plausible and not clearly erroneous. See Gilbert

v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'A finding is "clearly erroneous" when although there is

evidence to support it, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.'" (quoting United States v. U.S. Gypsum Co., 333 U.S.

364, 395 (1948))); see also 38 C.F.R. § 3.203(a) (to establish qualifying service, documents must

(1) be issued by a service department, (2) contain specified information, and (3) in VA's opinion be

genuine). Moreover, the Board's reasons or bases for finding the documents inadequate to verify

service are understandable and facilitative of judicial review. See Allday v. Brown, 7 Vet.App. 517,

527 (1995) (Board's statement "must be adequate to enable a claimant to understand the precise basis

for the Board's decision, as well as to facilitate review in this Court").

13