Citation Nr: 0810779 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-01 347 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence, sufficient to reopen a claim for entitlement to VA benefits, has been received. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION Service department records indicate that the appellant has no qualifying service with the Armed Forces of the United States. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2003 RO determination. The Board remanded this case in April 2004, and in January 2005, the Board denied the claim. The appellant appealed the January 2005 Board decision to the United States Court of Appeals for Veterans Claims (Court), and by Order dated in September 2006, the Court granted a Joint Motion for Remand filed that month. Pursuant to the above mentioned Order, the Board again remanded this case to the RO in March 2007. The RO previously denied entitlement to VA benefits by May 1995 determination that became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2007). In its February 2003 adjudication, the RO decided the claim on the merits and failed to apply the new and material evidence standard. However, a previously decided claim may not be reopened in the absence of new and material evidence. Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Regardless of RO action, the Board is bound to decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim. Id. Indeed, in April 2004, the Board recharacterized this matter as one entailing new and material evidence. The Board will address the matter of new and material evidence below. This case has been advanced on the Board's docket due to good cause shown. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDING OF FACT 1. By May 1995 determination, the RO last denied entitlement to VA benefits; the appellant did not file an appeal, timely or otherwise. 2. Evidence associated with the claims file since the May 1995 RO determination is either cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim, or does not present a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 1995 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2007). 2. New and material evidence to reopen the claim for entitlement to VA benefits has not been received. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist those claiming VA benefits in substantiating claims for benefits administered by VA. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case, the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Although the issue herein is whether the veteran is entitled to VA disability benefits, the underlying basis of his claim is entitlement to service connection for tuberculosis (TB) and asthma. The veteran was advised of the four elements enumerated above in letters dated April 24, 2004 and July 26, 2007 regarding both qualifying service and the requirements for establishing service connection. It follows that he was initially advised of VA's duty to notify before the RO issued its determination in this matter. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Although the issue herein is whether the veteran is entitled to VA disability benefits, the underlying basis of his claim is entitlement to service connection for TB and asthma. The veteran was advised of disability ratings and effective dates by letters dated July 26, 2007 and January 26, 2008. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Specific to requests to reopen, the claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the notice letter provided to the appellant on July 26, 2007 included the criteria for reopening a previously denied claim, the criteria for establishing entitlement to VA benefits and to service connection, and information concerning why the claim was previously denied. Accordingly, the Board finds that adequate notice has been provided, as the appellant was informed of what evidence is necessary to establish entitlement to VA benefits and to service connection that were found insufficient in previous denials. VA has a duty to assist claimants in the development of the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. It is specifically noted, however, that nothing in VCAA shall be construed to require VA reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. See 38 U.S.C.A. § 5103A(f). Once a claim is reopened, VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by VA, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. Because the claim is not reopened, as discussed in the body of the decision below, the VCAA duty to assist does not attach herein. Discussion Because the record indicates that the appellant filed the pending request to reopen his claim after August 29, 2001, the regulation pertinent to new and material evidence claims, 38 C.F.R. § 3.156, amended as of that date, will apply. See 66 Fed. Reg. 45,620-45,630 (Aug. 29, 2001) (now codified at 38 C.F.R. § 3.156(a) (2007)). The amended version of 38 C.F.R. § 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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(a) (2007). The RO last made a determination a to the lack of qualifying service in May 1995, where it noted that, based upon an April 1995 service department report, there was no record of qualifying active service found for the appellant. The appellant did not initiate an appeal of this determination, timely or otherwise, and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.1103 (2007) (detailing the procedures and time limitations for filing appeals and reflecting the finality of RO determinations not timely appealed). In February 2003, the appellant filed a request to reopen his claim for entitlement to VA benefits. The Board notes that he desires a grant of service connection for TB and asthma. In a determination dated that month, the RO again denied the claim, noting that the appellant had no record of qualifying active service and that there was no need, for that reason, to further evaluate his claim for VA benefits. The appellant appealed this determination to the Board. If new and material evidence is presented or secured with respect to a claim that has finally been disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." When determining whether the claim should be reopened, the credibility of the newly received evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). VA law provides that the United States will pay compensation to any "veteran" disabled by disease or injury incurred in or aggravated by active military service, who was discharged or released under conditions other than dishonorable from the period of service in which the disease or injury was incurred, provided the disability is not the result of the person's own willful misconduct. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). A "veteran" is a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d) (2007). Service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, is recognized service for receipt of certain VA benefits, as authorized by 38 U.S.C.A. § 107 (West 2002); 38 C.F.R. § 3.40 (2007). (The appellant is a national of the Philippines.) An individual who desires VA benefits must initially qualify as a claimant by submitting evidence of service and character of discharge. Aguilar v. Derwinski, 2 Vet. App. 21 (1991); Grottveit v. Brown, 5 Vet. App. 91 (1993). For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation, or burial benefits, VA may accept evidence of service submitted by an individual, 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); (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) (2007). Where an individual does not submit evidence of service, or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). The Court has held that VA is prohibited from finding, on any basis other than a service department document which VA believes to be authentic and accurate or a service department verification, that a particular individual served in the United States Armed Forces. Service department findings, therefore, are binding on VA for purposes of establishing service in the United States Armed Forces. Dacoron v. Brown, 4 Vet. App. 115, 120 (1993); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In light of the above legal considerations, in order to reopen his claim, the appellant must provide or identify a new record that would sufficiently rebut March 1969, April 1995, and September 2004 service department findings that he did not have any qualifying active service so as to be further considered for entitlement to VA benefits. In support of his February 2003 request to reopen this claim, the appellant has submitted several lay statements regarding the nature of his service and/or claimed service-connected disabilities dated from January 2003 to January 2008 as well as a medical certificate received in June 2004. These documents were not available to or evaluated by agency decisionmakers in the past. Accordingly, the Board finds that these documents constitute new evidence. As noted, however, this does not end the inquiry, as the Board must still determine whether any of this new evidence is also material. See Smith, supra. To that end, the Board holds that none of the newly received evidence of record is material to the appellant's claim for entitlement to VA benefits. The medical certificate received in June 2004 does not address whether the appellant has any qualifying active service. Rather, it addresses the current state of the appellant's health. As such, the medical certificate received in September 2004 is not material at this time. Furthermore, the new lay statements, dated from February 2003 to January 2008, in essence aver that the appellant has already submitted sufficient documentation of qualifying active service, in the form of an October 1990 proof of service that he submitted to the RO in October 1994. The Board's review of the claims file reveals that the RO sent this proof of service, along with other similar documents, to the service department for its consideration in April 1995. Later that month, the service department replied that there was still no record of qualifying active service for the appellant, and that the evidence he submitted as proof of his service was insufficient to warrant a change in the department's prior March 1969 certification of no active service. Consequently, because the appellant's lay statements merely request the award of VA benefits and mainly refer to a document already considered by the RO in its last final determination of record, the Board cannot consider any of these lay statements to be material with respect to the pending appeal; they do refer to an unestablished fact necessary to substantiate the claim. The Board therefore finds that because only new, but not material, evidence has been received to support the pending appeal, this request to reopen a claim for entitlement to VA benefits must be denied. 38 C.F.R. § 3.156(a). ORDER New and material evidence not having been received, the request to reopen the claim for entitlement to VA benefits is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs