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