Citation Nr: 0905638 Decision Date: 02/17/09 Archive Date: 02/24/09 DOCKET NO. 07-07 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to nonservice-connected death pension. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served from October 15, 1943 to November 25, 1945 as a member of the Commonwealth Army of the Philippines. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. The RO's March 1999 rating decision denied the appellant's claim for entitlement to nonservice-connected death pension benefits, on the basis that the Veteran had recognized service in the Philippine Army which under applicable regulations provided for receipt of disability compensation but not pension benefits. Upon notification of this decision the appellant did not appeal from it. 2. The additional evidence associated with the record since March 1999 does not relate to an unestablished fact necessary to substantiate the appellant's claim. CONCLUSIONS OF LAW 1. The March 1999 rating decision that denied entitlement to nonservice-connected death pension benefits is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2008); 38 C.F.R. § 3.104(a), 20.200, 20.202 (2008). 2. New and material evidence has not been received to reopen the previously denied claim. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2008); 38 C.F.R. § 3.156 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist the Claimant The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2008), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2008). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). (The Board notes that a regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), to be codified later at 38 CFR 3.159(b)(1)). The United States Court of Appeals for Veterans Claims (Court) has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The relevant notice information also must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The RO has informed the appellant of what evidence would substantiate her petition to reopen through a January 2007 VCAA notice letter, which notified her as to each element of satisfactory notice set forth under the Pelegrini II decision. The February 2007 Statement of the Case (SOC) explained the general criteria to establish a claim for pension benefits and the applicable regulation on reopening a claim. The VCAA notice further indicated the joint obligation between VA and the appellant to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining further VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court set forth additional criteria as to the content of the notice to be provided in connection with a petition to reopen, essentially requiring that VA provide a comprehensive definition of "new and material" evidence. In carrying out this notice obligation, VA must consider the basis for the previous denial and then provide an explanation of what evidence would be needed to substantiate the element found insufficient in the previous denial. The above-reference January 2007 VCAA correspondence explained in detail the type of evidence required to establish the claim, stating that the appellant should provide copies of documentation from the appropriate service department as verification that the Veteran had the necessary service to qualify for receipt of pension. Following this correspondence the February 2007 SOC provided citation to and explanation of the standard to reopen the claim, and defined "new and material" evidence in relation to the claim. The August 2008 Supplemental SOC (SSOC) then provided substantially similar notice information. In each instance, following the SOC and SSOC the appellant acknowledged receipt of these documents and indicated that she had provided additional evidence for purpose of meeting the "new and material" evidence standard. In light of these circumstances, the fact that the January 2007 VCAA letter did not expressly characterize the issue on appeal as a petition to reopen is not prejudicial to adjudication of this claim. The record clearly reflects the appellant had actual knowledge that the present matter is an attempt to reopen a previous claim. Also, the evidence required to establish the claim is essentially no different whether involving a petition to reopen or not, i.e., requiring some objective verification from a service department that demonstrates the requisite qualifying service. As a result, a remand in order to send a revised notice correspondence would have no useful purpose. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The RO has taken appropriate action to comply with the duty to assist the appellant through conducting an inquiry with the unit with which the Veteran was affiliated during his service to determine the capacity in which he served. In support of her claim the appellant has provided several personal statements, and copies of personnel records and other documentation pertaining to the Veteran's service. The appellant has declined the opportunity to testify at a hearing in furtherance of the claim. The record as it stands includes sufficient competent evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, no further action is necessary to assist the appellant. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Analysis of the Claim The appellant's claim pertains to eligibility for VA nonservice-connected death pension benefits. Such a nonservice-connected death pension is payable to the surviving spouse of a veteran of a war who has the requisite wartime service or who was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability. 38 U.S.C.A. §§ 1521, 1541. To establish basic eligibility for VA nonservice-connected death pension benefits, in part, the appellant's spouse must have had active military, naval or air service. 38 U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. As a predicate requirement for a grant of VA benefits, a claimant must establish that he or she is a veteran, defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). Service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, may constitute recognized service in the Armed Forces of the United States for VA purposes. 38 C.F.R. §§ 3.40, 3.41. Under applicable law, service in the Regular Philippine Scouts, the Insular Force of the Navy, Samoan Native Guard, and Samoan Native Band of the Navy is included for pension, compensation, dependency and indemnity compensation, and burial allowance. 38 C.F.R. § 3.40(a). Service in the Other Philippine Scouts enlisted under section 14, Pub. L. 190, 79th Congress (Act of October 6, 1945), between October 6, 1945 and June 30, 1947, inclusive, is included for compensation and dependency and indemnity compensation. 38 C.F.R. § 3.40(b). Service in the Commonwealth Army of the Philippines is included, for compensation, dependency and indemnity compensation, and burial allowance, from and after the dates and hours, respectively, when they were called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, U.S. Army, pursuant to the Military Order of the President of the United States dated July 26, 1941. Service as a guerrilla under the circumstances outlined in paragraph (d) of this section is also included. 38 C.F.R. § 3.40(c). For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, 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 under the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains needed information as to length, time and character of service; and, (3) in the opinion of VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). Where however, the evidence the claimant has provided or that has already been obtained does not sufficiently confirm the requisite service, VA shall request verification from the appropriate service department. 38 C.F.R. § 3.203(c). The RO's March 1999 rating decision denied the appellant's original claims for service connection for the cause of the Veteran's death, accrued benefits, and Dependency and Indemnity Compensation (DIC) benefits. The correspondence sent that month notifying the appellant of this decision also informed her of the denial of entitlement to nonservice- connected death pension. The letter explained that under applicable laws service in the Philippine Commonwealth Army, USAFFE, including the recognized guerrillas or new Philippine Scouts, was not recognized as having been active military service for purposes of establishing entitlement to nonservice-connected disability or death pension. The RO indicated that service department records confirmed the Veteran had active duty from October 15, 1943 to November 20, 1945 with the recognized guerillas. Further indicated was that certification of service was obtained through the proper military service department, and it was not within the province of VA to amend or change that issuance. The RO's resulting decision was that pension was not payable based on the type of service that the Veteran had. As the evidentiary basis for the RO's decision although not specifically referenced in the decision, the Veteran's Form WD AGO 53-55 (Enlisted Record and Report of Separation) originally had listed him as having served from between July 25, 1942 and April 6, 1947 in the 2nd Battalion of the 14th Infantry Division of the Army. Subsequently, a November 1953 record from the Department of the Army indicated that military status as a member of the Army, previously granted through alleged service in the 14th Infantry Regiment, had been revoked. A determination had been made instead to the effect that any military service the subject may have had was as a member of the Philippine Army, inducted into the service of the Armed Forces of the United States. The above decision by the RO took into account the latter report. The appellant filed a timely Notice of Disagreement (NOD) in response to the RO's March 1999 determination. The RO then issued a Statement of the Case, however, the appellant did not file a VA Form 9 or other Substantive Appeal as the next stage in the appellate process. Hence, the March 1999 decision became final on the merits. See U.S.C.A. § 7105 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.104(a), 20.200, 20.202 (2008). When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For purposes of the present appeal, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Evans v. Brown, 9 Vet. App. 273, 283 (1996). Following the RO's March 1999 original decision in this matter, evidence that would be material to reopen the claim for nonservice-connected pension must establish, or demonstrate to a reasonable likelihood, that the appellant has basic eligibility for pension benefits. To meet this requirement the record must include documentation from the appropriate service department clarifying that the Veteran has qualifying status for pension. 38 C.F.R. § 3.203. The new evidence which has been associated with the claims file consists of the July 2008 correspondence from the 14th Infantry Division pertaining to the Veteran's military status, in response to an RO inquiry; a September 2005 letter from the National Personnel Records Center (NPRC) to the appellant; a copy of the Veteran's original Form WD AGO 53- 55; a copy of the March 1949 documentation from the Headquarters of the Army, Philippines Command then stating that the Veteran had a period of continuous active service with the 14th Infantry between July 1942 and November 1945; and several statements the appellant has provided in support of her claim. The July 2008 correspondence of record from the 14th Infantry Division responds to the RO's inquiry as to clarification on the correct characterization of the Veteran's service. The inquiry had explained that the Veteran was initially afforded recognition in the Army of the United States (AUS) based on service in the 14th Infantry, and that recognition was subsequently revoked on November 9, 1953 and the Veteran recertified as a member of the Philippine Army. The RO requested information on whether the Veteran may have since re-acquired AUS status. In its reply, the 14th Infantry Division stated that the Veteran did not re-acquire AUS status, and to its knowledge there were no official records which confirmed re-acquired AUS status. Rather, records on file with the 14th Infantry Division showed that the Veteran's certification as a member of the Philippine Army from October 15, 1943 to November 20, 1945 was correct. In its September 2005 letter to the appellant, the National Personnel Records Center indicated that records pertaining to the Veteran's military status had likely been destroyed in a July 1973 fire at that agency, and that efforts to reconstruct the file also likely would not be successful. The NPRC was able to provide photocopies of several separation documents. The copy of the Veteran's original Form WD AGO 53-55 lists the Veteran's unit in which he served as the 14th Infantry Division, and the previous service dates of between July 25, 1942 and April 6, 1947. The March 1949 documentation from the Headquarters of the Army, Philippines Command also lists identical information. While these by all indication are fully accurate copies of documentation already of record, as indicated a few years after their issuance in November 1953 the Department of the Army revoked its certification that the Veteran had service in this capacity. There is no other documentation since that time period which denotes a further change in the designation of the Veteran's status. The appellant's assertions in statements she has provided contend that the Veteran had served on active duty among 122 recognized individuals with AUS status within the 14th Infantry Division. She also indicates that at one point VA had classified the Veteran's status as "Regular or Old Philippine Scout." While these assertions reflect the initial manner in which service documentation may have characterized the Veteran's service, the revised November 1953 designation, and recent statement from the 14th Infantry Division itself establish that the Veteran's service was instead with the Commonwealth Army of the Philippines during the timeframe from October 1943 to November 1945. To the extent the appellant's statements reiterate her contentions from when the RO originally considered this claim in March 1999, these statements also would not constitute new evidence for purposes of the reopening analysis. See Reid v. Derwinski, 2 Vet. App. 312 (1992). See also Untalan v. Nicholson, 20 Vet. App. 467 (2006) (the presentation of new arguments based on evidence already of record as of the previous decision does not provide new evidence). Accordingly, the Board finds that the competent evidence does not establish that the Veteran had service that qualifies for the receipt of nonservice-connected disability or death pension. It follows that new and material evidence has not been presented to reopen the appellant's claim for entitlement to nonservice-connected death pension, as the basic eligibility requirements are not met. 38 C.F.R. § 3.156. As the criteria for new and material evidence to reopen the claim have not been met, the benefit-of-the-doubt doctrine is not applicable, and the petition to reopen must be denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER The petition to reopen a claim for entitlement to nonservice- connected death pension is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs