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