Citation Nr: 0812294	
Decision Date: 04/14/08    Archive Date: 05/01/08

DOCKET NO.  06-08 191	)	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 of legal entitlement to VA benefits.


ATTORNEY FOR THE BOARD

John Z. Jones, Counsel




INTRODUCTION

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a June 2005 decisional letter of the Manila, 
Philippines, Department of Veterans Affairs (VA) Regional 
Office (RO). 


FINDINGS OF FACT

1.  An unappealed decisional letter in October 1998 denied 
the appellant legal entitlement to VA benefits because he did 
not have recognized U.S. military service.

2.  Evidence received since the October 1998 decisional 
letter includes evidence not of record at the time of that 
decision that provides new information requiring a request 
for recertification of service and raises a reasonable 
possibility of substantiating the claim.

3.  The service department has recertified that the appellant 
had no service as a member of the Philippine Commonwealth 
Army, including the recognized guerrillas, in the service of 
the U.S. Armed Forces.


CONCLUSIONS OF LAW

1.  New and material evidence has been received, and the 
claim to establish legal entitlement to VA benefits may be 
reopened.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 
C.F.R. § 3.156 (2007).

2.  As the appellant did not have recognized service, he is 
not a veteran, and the threshold legal requirement for 
establishing entitlement to VA benefits is not met.  38 
U.S.C.A. §§ 101, 107, 1310, 1541 (West 2002 & Supp. 2007); 38 
C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), in part, 
describes VA's duties to notify and assist claimants in 
substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 
5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 
3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the 
instant claim to reopen.

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative 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 VCAA notice 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 his or her 
possession that pertains to the claim.  38 C.F.R. § 
3.159(b)(1).  VCAA notice should be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction decision on a claim.  Pelegrini v. Principi, 18 
Vet. App. 112 (2004).

Initially, the Board notes that in August 2006 the appellant 
was given notice regarding the definition of new and material 
evidence and what information was necessary to reopen his 
claim to establish legal entitlement for VA benefits as is 
required by Kent v. Nicholson, 20 Vet. App. 1 (2006).  

Regarding the underlying claim, the VCAA does not apply.  The 
only issue before the Board is whether the appellant had 
qualifying service to establish veteran status; if not, he is 
not a proper claimant for VA benefits.  The record includes 
service department certification of nonservice.  Because 
qualifying service and how it may be established are outlined 
in statute and regulation and because service department 
certifications of service are binding (and dispositive unless 
there is evidence suggesting that a request for 
recertification of service is necessary), the Board's review 
is limited to interpreting the pertinent law and regulations.  
The United States Court of Appeals for Veterans Claims 
(Court) has held that when the interpretation of a statute is 
dispositive of the issue on appeal, neither the duty to 
assist nor the duty to notify provisions of the VCAA are 
implicated.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 
(2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000).

Factual Background, Legal Criteria, and Analysis

A decisional letter in October 1998 denied the appellant's 
claim seeking legal entitlement to VA benefits finding that 
he did not have qualifying service.  The appellant did not 
appeal this decision, and it became final.  38 U.S.C.A. § 
7105.  [Parenthetically, the Boards notes that the 
appellant's claim was initially denied in a June 1990 
decisional letter; however, there is no indication that he 
was advised of his appellate rights at that time].

Generally, when a claim is disallowed, it may not be reopened 
and allowed, and a claim based on the same factual basis may 
not be considered.  Id.  However, a claim on which there is a 
final decision may be reopened if new and material evidence 
is submitted.  38 U.S.C.A. § 5108.

38 C.F.R. § 3.156(a), which defines "new and material 
evidence," was revised, effective for all claims to reopen 
filed on or after August 29, 2001.  The instant claim to 
reopen was filed after that date and the new definition 
applies.  "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.  38 
C.F.R. § 3.156(a).  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.  Id.  When determining whether the 
claim should be reopened, the credibility of the newly 
submitted evidence is to be presumed.  Justus v. Principi, 3 
Vet. App. 510 (1992).

VA Compensation and Pension Benefits are payable to veterans 
who meet evidentiary/qualifying requirements.  38 U.S.C.A. §§ 
1310, 1541.

"Veteran" means a person who served in the active military, 
naval, or air service and who was discharged or released 
under conditions other than dishonorable.  38 U.S.C.A. § 101; 
38 C.F.R. § 3.1(d).  Recognized Philippine guerrilla service 
(under a commissioned U. S. officer or a commissioned officer 
of the Commonwealth Army, recognized by and cooperating with 
U.S. Forces) is qualifying service for VA compensation 
benefits.  38 U.S.C.A. § 107; 38 C.F.R. § 3.40.  Service 
department certifications will be accepted as establishing 
both recognized guerrilla service and unrecognized guerrilla 
service (under a recognized commissioned officer, who was a 
former member of the U.S. Armed Forces or the Commonwealth 
Army).  38 C.F.R. § 3.40(d)(2).  The active service of 
members of the irregular forces guerrilla will be the period 
certified by the service department.  38 C.F.R. § 3.41(d).  
See also Duro v. Derwinski, 2 Vet. App. 530 (1992).

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 the VA, the document 
is genuine and the information contained in it is accurate.  
38 C.F.R. § 3.203(a).  When the claimant does not submit 
evidence of service or the evidence does not meet the 
requirements of this section, the VA shall request 
verification of service from a service department.  38 C.F.R. 
§ 3.203(c).

Documentation from the Philippine Commonwealth Army states 
that the appellant (M.L.S.) was a civilian who joined the 
Philippine Army in November 1941 and was a member of the 4th 
Repl. Bn.

In May 1990, the U.S. Army Reserve Personnel Center requested 
certification of the appellant's service using the name 
M.L.S. and the service dates November 1941 to May 1946.  In 
June 1990, the National Personnel Records Center (NPRC) 
certified that the appellant had no service as a member of 
the Philippine Commonwealth Army, including the recognized 
guerrillas, in the service of the United States Armed Forces.

Evidence received since the October 1998 decisional letter 
includes a statement from the appellant wherein he provided 
additional names (M.N.S. and J.C.) upon which a service 
department search could be conducted.  See VA Form 21-4138, 
dated in April 2003.  

Reopening of the Claim

Because the appellant's claim was previously denied based on 
a finding that he did not have recognized service in the U.S. 
Armed Forces, for evidence to be new and material, it would 
have to either show that he did have recognized active 
service or that a new request for verification of service was 
necessary.

The appellant's April 2003 statement constitutes new evidence 
because it provides different information, i.e., alternate 
names, than what was used by the NPRC in June 1990 to certify 
nonservice.  Hence, it gives new information upon which a 
service department search could be conducted and raises a 
reasonable possibility of substantiating the appellant's 
claim to establish basic eligibility.  See Sarmiento v. 
Brown, 7 Vet. App. 80, 85 (1994).

Accordingly, this document is new and material evidence and 
the claim seeking to establish veteran status of the 
appellant and legal entitlement to VA benefits must be 
reopened.

De Novo Review - Legal Entitlement to VA Death Benefits

The Board notes that the claims file includes the following 
pieces of evidence: (1) an Affidavit for Philippine Army 
Personnel dated in February 1946; (2) documentation from the 
Philippine Commonwealth Army dated in May 1946; (3) a 
Philippine Adjutant General Office's certification dated in 
April 1998; and (4) Affidavits from fellow serviceman.  Upon 
review, the Board finds that none of the aforementioned 
pieces of evidence meets the first requirement of 38 C.F.R. § 
3.203(a) as none was issued by a U.S. service department.  
The appellant has not submitted a DD Form 214, a 
Certification of Release or Discharge from Active Duty, or an 
original Certificate of Discharge from the U.S. Armed Forces.  
Therefore, VA sought service department re-certification of 
whether the appellant served in the U.S. Armed Forces in the 
Philippines based on the new information provided in his 
April 2003 statement - specifically, the additional names 
M.N.S. and J.C.  In May 2005, the NPRC used this information 
to recertify that the appellant had no service as a member of 
the Philippine Commonwealth Army, including the recognized 
guerrillas, in the service of the U.S. Armed Forces.  This 
certification is binding on VA; VA has no authority to change 
or amend the finding.  Duro v. Derwinski, 2 Vet. App. 530 
(1992).  The appellant has provided no further evidence that 
would warrant another request for recertification from the 
service department.  See Sarmiento v. Brown, 7 Vet. App. 80, 
85 (1994).

Accordingly, the Board finds that the appellant did not have 
the requisite service and is not a veteran so as to establish 
basic eligibility for VA benefits.  Since the law is 
dispositive in this matter, the claim must be denied because 
of the absence of legal merit or entitlement under the law.  
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

The appeal to reopen a claim of legal entitlement to VA 
benefits is granted; however, legal entitlement to VA 
benefits is denied on de novo review.



____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs