Citation Nr: 0812767	
Decision Date: 04/17/08    Archive Date: 05/01/08

DOCKET NO.  06-15 491	)	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 submitted to 
establish legal entitlement to VA death benefits.


REPRESENTATION

Appellant represented by:	Agapito B. Calleja


ATTORNEY FOR THE BOARD

M. R. Weaver




INTRODUCTION

The appellant claims that her deceased husband served as a 
guerrilla under the Commonwealth Army of the Philippines 
during World War II.  The appellant seeks death benefits as a 
surviving spouse.  
 
This matter comes before the Board of Veterans' Appeals 
(Board) from a December 2005 decision by a VA Regional Office 
(RO) that found that new and material evidence had not been 
submitted to reopen a claim for entitlement to death 
benefits.  


FINDINGS OF FACT

1.	In March 1975, the RO denied eligibility to receive VA 
death benefits because it determined that the appellant's 
husband did not have recognized service in the armed forces 
of the United States.  An appeal was not perfected.

2.	Evidence submitted since the March 1975 decision is 
cumulative of previously submitted evidence and does not, by 
itself or when considered with previous evidence of record, 
relate to an unestablished fact necessary to substantiate the 
claim or raise a reasonable possibility of substantiating the 
claim.  
 
 
CONCLUSION OF LAW

New and material evidence has not been received to establish 
legal entitlement to VA death benefits.  38 U.S.C.A. §§ 5104, 
5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(a), 
20.1103 (2007). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

New and Material Evidence

Eligibility to receive VA death benefits was previously 
denied in a March 1975 letter from the RO because the 
decedent was not found to have qualifying service.  A finally 
adjudicated claim is an application which has been allowed or 
disallowed by the agency of original jurisdiction, the action 
having become final by the expiration of one year after the 
date of notice of an award or disallowance, or by denial on 
appellate review, whichever is the earlier.  38 U.S.C.A. §§ 
7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 
20.1103 (2007).  The appellant did not file a timely appeal 
to the December 2005 denial letter and accordingly, that 
decision became final.

A finally adjudicated claim may only be reopened if new and 
material evidence is submitted.  Manio v. Derwinski, 1 Vet. 
App. 140 (1991).  Under the applicable provisions, new 
evidence means existing evidence not previously submitted to 
agency decision makers.  38 C.F.R. § 3.156(a).  Material 
evidence means existing evidence that, by itself or when 
considered with the 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 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).  In 
determining whether evidence is new and material, the 
credibility of the new evidence is presumed.  Justus v. 
Principi, 3 Vet. App. 510 (1992).

Eligibility for VA benefits is governed by statutory and 
regulatory law that defines an individual's legal status as a 
veteran of active military, naval, or air service.  38 
U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6.  The term 
"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 C.F.R. 
§ 3.1(d).  The term "veteran of any war" means any veteran 
who served in the active military, naval, or air service 
during a period of war.  38 C.F.R. § 3.1(e).  
Title 38 of the United States Code authorizes the Secretary 
of Veterans Affairs to prescribe the nature of proof 
necessary to establish entitlement to veterans' benefits. 38 
U.S.C.A. § 501(a)(1).  Under that authority, the Secretary 
has promulgated regulations such as 38 C.F.R. §§ 3.40, 3.41, 
3.203 to govern the conditions under which the VA may extend 
veterans' benefits based upon service in the Philippine 
Commonwealth Army.  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, for persons called into 
service of the Armed Forces of the United States by orders 
issued from time to time by the General Officer, United 
States Army, pursuant to the Military Order of the President 
of the United States dated July 26, 1941.  38 C.F.R. §  3.40 
(c).  

Persons who served as guerrillas under a commissioned officer 
of the United States Army, Navy, or Marine Corps, or under a 
commissioned officer of the Commonwealth Army recognized by 
and cooperating with the United States Forces are included.  
Service as a guerrilla by a member of the Philippine Scouts 
or the Armed Forces of the United States is considered as 
service in his or her regular status.  38 C.F.R. § 3.40 (d).  
The following certifications by the service departments are 
accepted as establishing guerrilla service: (i) Recognized 
guerrilla service; (ii) Unrecognized guerrilla service under 
a recognized commissioned officer only if the person was a 
former member of the United States Armed Forces (including 
the Philippine Scouts), or the Commonwealth Army.  A 
certification of Anti-Japanese Activity will not be accepted 
as establishing guerrilla service.  38 C.F.R. § 3.40 (d)(2).   
 
Where service department certification is required, the 
service department's decision on such matters is conclusive 
and binding upon VA.  38 C.F.R. § 3.203(c); Duro v. 
Derwinski, 2 Vet. App. 530 (1992).  Thus, if the United 
States service department declines to verify the claimed 
service, the applicant's only recourse to alter such 
certification lies within the relevant service department, 
not VA.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).

In the present case, the evidence of record at the time of 
the March 1975 denial included affidavits from comrades who 
claimed to have served with the decedent; a letter from the 
Armed Forces of the Philippines General Headquarters stating 
that the decedent was a member of the Army of the 
Philippines; and a request for information dated March 1977 
indicating that a search revealed that the decedent had no 
service as a member of the Philippine Commonwealth Army, 
including the recognized guerrillas in the service of the 
United States Armed Forces.  The claim was denied because the 
evidence did not show that the decedent was a "veteran." 

The appellant applied to reopen her claim for entitlement to 
VA death benefits in August 2005.  The Board, however, has 
not received any evidence not previously submitted to agency 
decision makers that relates to an unestablished fact 
necessary to substantiate her claim.  An affidavit from the 
decedent's commander stating that the decedent served in a 
guerrilla organization was not previously submitted to agency 
decision makers but it is duplicative of affidavits 
previously submitted in 1975.  Duplicate statements or 
documents, by their very nature, may not be new and material.  
38 C.F.R. § 3.156.  The appellant has not submitted 
certifications by any service departments to establish 
guerrilla service under 38 C.F.R. § 3.40 (d)(2).  Moreover, 
an October 2005 request for verification of service by the 
National Personnel Records Center found no evidence that the 
decedent served as a member of the Commonwealth Army of the 
Philippines, including recognized guerrilla, in the service 
for the Armed Forces of the United States.

The submitted evidence does not show that the decedent served 
in the armed forces of the United States.  Accordingly, the 
Board finds that new and material evidence has not been 
submitted to reopen the appellant's claim of entitlement to 
VA death benefits.  

With respect to the claim to reopen, the Board finds that VA 
has substantially satisfied the duties to notify and assist 
as required under 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 
& Supp. 2007); 38 C.F.R. § 3.159 (2007).  To the extent there 
may be any deficiency of notice or assistance, there is no 
prejudice to the appellant because the evidence does not show 
that the claimant had valid service.



ORDER

New and material evidence has not been submitted to establish 
legal entitlement to VA death benefits.



____________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs