Citation Nr: 0812928	
Decision Date: 04/18/08    Archive Date: 05/01/08

DOCKET NO.  06-15 809	)	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:	American Defenders of Bataan 
and Corregidor, Inc.


ATTORNEY FOR THE BOARD

M. R. Weaver



INTRODUCTION

The appellant claims that her deceased husband was a member 
of the United States Armed Forces for the Far East (USAFFE) 
during World War II.  The appellant seeks Dependency and 
Indemnity Compensation (DIC).
 
This matter comes before the Board of Veterans' Appeals 
(Board) from an October 2005 decision by a VA Regional Office 
(RO) that found that new and material evidence had not been 
submitted to establish legal entitlement to VA benefits.  


FINDINGS OF FACT

1.	In January 1991, the RO denied eligibility to receive VA 
benefits because there was no evidence that the deceased was 
a member of the Philippine Commonwealth Army, that he was 
USAFFE inducted into the service of the United States Armed 
Forces, or that he had recognized guerrilla service.  An 
appeal was not perfected.

2.	Evidence submitted since the January 1991 decision 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 January 1991 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).  Here, the appellant did not file a timely 
appeal to the January 1991 denial and 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 38 C.F.R. §§ 3.40, 3.41, and 3.203(a), (c), 
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 regular status.  38 C.F.R. § 3.40 
(d).  

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). 

The evidence of record at the time of the January 1991 denial 
included the decedent's enlistment record, an affidavit from 
Philippine Army Personnel, hospital medical records, and a 
request for information dated January 1991 showing that 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.  Hence, the 
claim was denied.

The appellant applied to reopen her claim for VA death 
benefits in June 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.  Documents submitted include several 
affidavits from the decedent's comrades attesting to his 
service, service records and a certificate of release from 
the FIL-American Irregular Troops, and a copy of a service 
award certificate signed by President Bush.  However, a 
search of the United States Army Reserve Personnel Command 
conducted in February 2006, still showed that the decedent 
had no valid military service in the Armed Forces of the 
United States.  Thus, although some the documents submitted 
are new, the Board finds that they are not material because 
they do not constitute service department documents that show 
that the decedent has the requite service to qualify for VA 
benefits.  

In the absence of new and material evidence, the claim to 
reopen must be denied.  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 that the notice and development 
provisions apply, and to the extent that there may be any 
deficiency of notice or assistance, the Board finds no 
prejudice to the appellant because no valid, recognized 
service is shown in this case.


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