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