Citation Nr: 0811903 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-07 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for residuals of a gunshot wound to the left hand. 2. Whether the veteran is entitled to recognized military service prior to September 15, 1944. ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION The veteran had recognized guerrilla service from September 1944 to November 1945, and also served with the Regular Philippine Army in November 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO), which determined that the veteran had not submitted new and material evidence to reopen the claim of service connection for residuals of a gunshot wound, left hand. In the November 2005 statement of the case (SOC), the RO adjudicated the veteran's claim for recognized military service prior to September 15, 1944, and the veteran subsequently appealed the matter. Given the foregoing procedural development and resolving any procedural deficiency in the veteran's favor, the issue is currently before the Board. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The agency of original jurisdiction (AOJ) denied reopening the claim of entitlement to service connection for residuals of a gunshot wound to the left hand in an April 1996 rating decision. The veteran did not appeal the decision. 3. Since the April 1996 rating decision which denied reopening the claim for service connection for residuals of a gunshot wound to the left hand, evidence that relates to an unestablished fact necessary to substantiate the claim has not been presented or secured. 4. The service department has certified that the veteran served with the recognized guerilla service and the regular Philippine Army from September 15, 1944 to November 13, 1945, and November 14, 1945 to November 21, 1945, respectively. CONCLUSIONS OF LAW 1. The April 1996 rating decision that denied reopening the claim of entitlement to service connection for residuals of a gunshot wound to the left hand is final. Evidence submitted since that decision is not new and material. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156(a), 3.159, 20.1103 (2007). 2. The criteria for recognized military service prior to September 15, 1944, have not been met. 38 U.S.C.A. §§ 101, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.40, 3.41, 3.159, 3.203 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Decision A. Residuals of a Gunshot Wound to the Left Hand Applicable Laws and Regulations New and Material Pursuant to 38 U.S.C.A. § 7105(c), a decision by the RO may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. The exception to this rule is described under 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c); See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Additionally, when determining whether the claimant has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). In Evans, the United States Court of Appeals for Veterans Claims (Court) indicated that the newly presented evidence need not be probative of all the elements required to award the claim, but need only tend to prove each element that was a specified basis for the last disallowance. Id. at 284. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service injury or disease and competent medical evidence of a nexus between the current disability and service. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis At the time of the April 1996 rating decision, which determined that new and material evidence had not been submitted to reopen the veteran's claim of service connection for residuals of a gunshot wound, left hand, the evidence of record consisted of the veteran's service medical records, results from a February 1993 VA examination, private medical certification statements dated March 1992 and September 1992, testimony elicited during a March 1996 RO hearing, and the veteran's application for compensation benefits. The veteran asserts that service connection is warranted for his residuals of a gunshot wound to the left hand during his military service. In the April 1996 rating decision, the RO determined that the evidence submitted in connection with the veteran's claim was not new and material to his claim of service connection for residuals of a gunshot wound to the left hand. The RO explained that the only evidence submitted in connection with the claim was the veteran's testimony during the March 1996 hearing, wherein the veteran reported receiving the gunshot wound in 1943, which was prior to his active military service. The RO concluded that in the absence of new and material evidence, the claim could not successfully be reopened. The veteran was notified of the denial in an April 1996 letter, including his appeal rights, and he did not appeal the decision. Thus, it is final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. After having carefully reviewed the evidence of record, the Board finds that the veteran has not presented evidence since the April 1996 rating decision, which raises a reasonable possibility of substantiating the claim for service connection for residuals of a gunshot wound to the left hand. Since the April 1996 rating decision, the evidence received into the record includes two private medical statements dated June 2005 and September 2005 from V.S.M., M.D. In the June 2005 statement, Dr. V.S.M. indicated that the veteran has been receiving treatment for an ankle and knee condition, possible right eye cataract, and scars on the left hand due to a bullet wound "during the war." In the September 2005 statement, Dr. V.S.M. indicated that the veteran has been under her care since 2001 for hypertensive vascular heart disease. She also noted the veteran has a gunshot wound scar on his left hand sustained during the war. While the two private medical statements from Dr. V.S.M. are new in that the veteran did not previously submit them, they are not material, as they do not show that his current residuals of a left hand gunshot wound are due to a gunshot wound incurred during his active military service. It appears that Dr. V.S.M.'s statements are based on the veteran's own recollection of history and are not substantiated by objective medical evidence. There is no evidence that Dr. V.S.M. relied upon the veteran's service medical records or the claims file in making her conclusion. The Court has held that additional evidence, which consists merely of records of post-service treatment that do not indicate that a condition is service connected, is not new and material. Cox v. Brown, 5 Vet. App. 95, 99 (1993). The Board concludes that this information, while new, does not raise a reasonable possibility of substantiating the claim. The evidence received in conjunction with the claim to reopen is not new and material, and does not serve to reopen the claim for service connection for residuals of a gunshot wound to the left hand. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Having found that the evidence is not new and material, no further adjudication of this claim is warranted. See Kehoskie v. Derwinski, 2 Vet. App. 31 (1991). B. Recognized Military Service The veteran contends in an October 2005 personal statement that he has recognized military service from May 10, 1942 to January 8, 1945. To support his contention, he submitted an April 1990 certification statement from the Republic of the Philippines, Department of National Defense General Headquarters. The certification statement indicates that the veteran's period of service commenced on September 15, 1944 and ended on January 8, 1945. Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and VA has no authority to amend or change their decision. The Court has held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon the VA. See Spence v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Based upon the evidence of record, the Board finds that the veteran's period of active military duty is from September 15, 1944 to November 21, 1945. The service department certified that the veteran served with the recognized guerilla service from September 15, 1944 to November 13, 1945, and with the Regular Philippine Army from November 14, 1945 to November 21, 1945. This is further supported by the April 1990 certification statement submitted by the veteran, which states that his period of service commenced on September 15, 1944. In this case, the law is dispositive, and entitlement to recognized service prior to September 15, 1944, must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). II. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. In regards to the veteran's claim of entitlement to recognized military service prior to September 15, 1944, the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). VA will refrain from providing assistance in obtaining evidence where the claimant is ineligible for the benefits sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility. 38 C.F.R. § 3.159(d). When there is extensive factual development in a case, and there is no reasonable possibility that any further assistance would aid the appellant in substantiating his or her claim, VCAA does not apply. 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Moreover, this decision results in a denial of entitlement to recognized service prior to September 15, 1944, and any failure to provide notice as to the effective date and rating is harmless error. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Turning to the veteran's claim for residuals of a gunshot wound to the left hand, the Board finds that the VCAA notice requirements have been satisfied by the July 2005 letter. In the letter, VA informed the veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. During the pendency of this appeal, on March 31, 2006, the Court issued a decision in the appeal of Kent v. Nicholson, 20 Vet. App. 1 (2006), which establishes new requirements regarding the VCAA notice and reopening claims. The Court held that the VCAA notice must include the bases for the denial in the prior decision and VA must respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (holding evidence is material if it is relevant to and probative of an issue that was a specified basis for the last final disallowance). The veteran has been apprised of the information necessary to reopen his claim in the July 2005 VCAA letter. As to informing the veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had a duty to obtain any records held by any federal agency. It also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. The RO told the veteran that he could obtain private records himself and submit them to VA. Finally, he was told to submit any evidence in his possession that pertained to the claim. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has obtained the veteran's service medical records, and private medical records from March 1992 to September 1992, and from June 2005 to September 2005. VA has not provided the veteran with an examination in connection with his claim; however, the Board finds that VA was not under an obligation to have the veteran examined for his claim. The veteran has not brought forth new and material evidence to reopen the claim. 38 C.F.R. § 3.159(c)(4)(iii) states that paragraph (c)(4) applies to a claim to reopen a finally adjudicated claim only if new and material evidence is presented or secured. For these reasons, the Board finds that VA was not under an obligation to provide an examination in connection with his claim. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER New and material evidence not having been presented, the application to reopen a claim of entitlement to service connection for residuals of a gunshot wound to the left hand is denied. Entitlement to recognized military service prior to September 15, 1944, is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs