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CAPELLAN v. PEAKE

No. 2007-7236.

539 F.3d 1373 (2008)

Fortunata CAPELLAN, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.

United States Court of Appeals, Federal Circuit.

September 2, 2008.

Attorney(s) appearing for the Case

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.

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

NEWMAN, Circuit Judge.

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...

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