Citation Nr: 0813331 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-07 728 ) 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 sufficient to reopen the appellant's claim of entitlement to restoration of death benefits as the veteran's surviving spouse. ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active military duty from February 1941 to March 1945. He married the appellant in May 1980. He died in May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2005 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which determined that new and material evidence had not been received sufficient to reopen the appellant's claim of entitlement to restoration of death benefits as the veteran's surviving spouse. The appellant disagreed with this decision in October 2005. She perfected a timely appeal in March 2006. In June 2004, the Board denied the appellant's claim of entitlement to restoration of death benefits as the veteran's surviving spouse. The appellant filed a motion for reconsideration of this decision at the Board in October 2004. A Board Deputy Vice Chairman denied the appellant's motion in February 2005. The appellant did not appeal the June 2004 Board decision further, and it became final. See 38 U.S.C.A. § 7104 (West 2002). It appears that the RO subsequently reopened the appellant's claim of entitlement to restoration of death benefits as the veteran's surviving spouse and denied this claim on the merits in the May 2006 Supplemental Statement of the Case. The Board does not have jurisdiction to consider a claim that has been previously adjudicated unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, although the RO has adjudicated this claim on a de novo basis, this issue is as stated on the title page. Regardless of the RO's reopening of the claim for restoration of death benefits as the veteran's surviving spouse, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened, regardless of the RO's finding. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. In June 2004, the Board denied the appellant's claim of entitlement to restoration of death benefits as the veteran's surviving spouse. 3. In October 2004, a Board Deputy Vice Chairman denied the appellant's motion for reconsideration of the Board's June 2004 decision. 4. The lay statements submitted in support of the appellant's application to reopen her claim of entitlement to restoration of death benefits as the veteran's surviving spouse are inherently incredible because they directly contradict earlier lay statements concerning the appellant's relationship with E.F. after her husband's death. 5. New and material evidence has not been received since June 2004 in support of the appellant's claim of entitlement to restoration of death benefits as the veteran's surviving spouse. CONCLUSIONS OF LAW 1. The June 2004 Board decision, which denied the appellant's claim of entitlement to restoration of death benefits as the veteran's surviving spouse, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 3.105, 20.1000, 20.1001, 20.1100 (2007). 2. Evidence received since the June 2004 Board decision is not new and material; accordingly, this claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a November 2004 letter, VA notified the appellant of the information and evidence needed to substantiate and complete her claim, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter informed the appellant to submit evidence showing that she was not in a marital relationship with E.F. after the veteran's death and noted other types of evidence the appellant could submit in support of her claim. In addition, the appellant was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has substantially satisfied the requirement that the appellant be advised to submit any additional information in support of her claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The November 2004 letter also defined new and material evidence, advised the appellant of the reasons for the prior denial of the claim of entitlement to restoration of death benefits as the veteran's surviving spouse, and noted the evidence needed to substantiate the underlying claim. Specifically, the veteran was advised that her claim had been denied previously because there was evidence that she had been in a marital relationship with E.F. for several months after the veteran's death; this relationship precluded her continued receipt of VA death pension benefits as a surviving spouse. That correspondence satisfied the notice requirements as defined in Kent v. Nicholson, 20 Vet. App. 1 (2006). Although the notification did not advise the appellant of the laws regarding degrees of disability or effective dates for any grant of service connection, the Board finds that failure to satisfy the duty to notify in that regard is not prejudicial. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Because the Board has determined in this decision that evidence submitted since the last final denial does not merit reopening of the claim of entitlement to restoration of death benefits as the veteran's surviving spouse, any failure to notify and/or develop this claim under the VCAA cannot be considered prejudicial to the appellant. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the November 2004 letter was issued before the January 2005 administrative decision which denied the benefits sought on appeal; thus, the notice was timely. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the appellant in obtaining evidence and affording her the opportunity to give testimony before the RO and the Board, although she declined to so. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the claims file; the appellant does not contend otherwise. As will be explained below, however, the newly submitted evidence does not change the fact that, after the veteran's death, the appellant and E.F. held themselves out as husband and wife for a period of 4 months between December 1992 and May 1993, precluding the appellant's continued entitlement to VA death benefits as a surviving spouse; thus, this claim is not reopened. In summary, the Board finds that VA has done everything reasonably possible to notify and to assist the appellant and no further action is necessary to meet the requirements of the VCAA. In June 2004, the Board determined that the appellant was not entitled to restoration of death benefits as the veteran's surviving spouse. 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 filed a motion for reconsideration of the Board's June 2004 decision in October 2004. As noted in the Introduction, a Board Deputy Vice Chairman denied reconsideration in February 2005. 38 U.S.C.A. §§ 7103, 7104 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.1000, 20.1001 (2007). The appellant did not appeal this decision to the United States Court of Appeals for Veterans Claims, and it became final. 38 U.S.C.A. §§ 7104, 7266 (West 2002 & Supp. 2007). The claim of entitlement to restoration of death benefits as the veteran's surviving spouse may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The appellant filed this application to reopen her previously denied claim for restoration of death benefits as the veteran's surviving spouse in October 2004. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. 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. 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510 (1992); compare King v. Brown, 5 Vet. App. 19, 21 (1993) (holding that exceptions to the presumption of credibility "occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion.") The evidence before VA at the time of the final Board decision in June 2004 consisted of multiple affidavits concerning the appellant's relationship with E.F. after her husband's (the veteran's) death and a VA field investigator's report from 1994. In the June 2004 decision, the Board concluded that the appellant and E.F. cohabited together and held themselves out to the public to be married to each other, creating an inference or presumption that the appellant had remarried, between December 1992 and May 1993. The Board reviewed all of the evidence then of record, including lay statements verifying that the appellant and E.F. lived together and held themselves out as husband and wife and a VA field investigator's report from 1994 in which the appellant provided a sworn statement that she and E.F. held themselves out as husband and wife between December 1992 and May 1993. The Board also noted that more recent lay statements (in which the appellant asserted that she had not cohabited with E.F. and had not held herself out as E.F.'s wife for several months after her husband's death) contradicted the evidence obtained by VA contemporaneous to the time that the appellant and E.F. cohabited together and held themselves out as husband and wife to the public in 1992 and 1993; thus, the more recent statements were "patently self-serving and lacking in character for truthfulness." Because the appellant and E.F. maintained a marital-style relationship for several months in 1992 and 1993, the Board found that this relationship disqualified the appellant from recognition as the veteran's surviving spouse for VA benefits purposes. Thus, the claim was denied. The newly submitted evidence includes multiple affidavits concerning the appellant's relationship with E.F. and several legal certificates concerning the appellant's lack of a criminal record. In an October 2004 affidavit attached to the appellant's application to reopen her claim for restoration of death benefits, A.R., the appellant's sister, acknowledged that she had written a letter to VA in April 1993 asserting that the appellant was living with E.F. as husband and wife for "more or less four months" after the veteran's death. A.R. stated, "I fabricated additional stories against my sister and [E.F.] in order to discontinue the benefits that she is receiving" from VA. "I wish to RETRACT the misconduct that I committed." A.R. also stated that her sister and E.F. had a "mere sexual relationship but not as husband and wife that I had declared." A.R. stated further that E.F. and his 3 children were "mere boarders" in her sister's house "for more or less four months in 1993." In another October 2004 affidavit attached to the appellant's application to reopen her claim for restoration of death benefits, C.P. and L.V. contended that they were sisters to both A.R. and the appellant. These women also contended that A.R. "had sown a black motive" to the appellant when she reported the appellant to the VA in 1993 and caused the appellant's death pension benefits to be discontinued. In a May 2005 affidavit, the appellant contended that, in May 1992, E.F. and his 3 children came to live "as boarders" in her house "for more or less for months." She contended that, while E.F. lived in her house, her neighbors suspected that she and E.F. were having an illicit relationship. She also contended that she had no "common-law relationship" with E.F. The appellant also submitted several legal certificates in May 2006 in support of her claim. In a "Certificate of Clearance" from the Republic of the Philippines, First Judicial Region, Municipal Trial Court, Caba, La Union, Philippines, a court clerk certified that, according to court records, the appellant had never been charged with nor convicted of adultery or any other crime. In a "Certification" from the Republic of the Philippines National Prosecution Service, an administrative officer certified that the appellant has no pending case, was not under investigation, and had not been convicted of any crime. A "Police Clearance" from the Republic of the Philippines National Police Commission certified that the appellant had no criminal record. The Barangay Captain in the appellant's province also certified that the appellant was a law-abiding citizen. Finally, the Regional Trial Court clerk certified in a "Court Clearance" that the appellant had no criminal record. In a July 2006 letter, the appellant admitted that she had had a "mere sexual relationship" lasting 4 months with E.F. and that "there was no truth that the appellant and [E.F.] had lived together as husband and wife neither publicly nor secretly." The appellant relies heavily on the newly submitted affidavits and her own lay statements as support for her argument that her previously denied claim for restoration of death benefits should be reopened and, once reopened, her death pension benefits should be restored because she is the veteran's surviving spouse. As noted, however, the Board concluded in June 2004 that, after the veteran's death, the appellant and E.F. had cohabited together and held themselves out in public as husband and wife for several months in 1992 and 1993; this relationship precluded the appellant's recognition as the veteran's surviving spouse and disqualified her from having her death benefits restored. See 38 C.F.R. §§ 3.55(a)(5), (8). The newly submitted lay statements are not duplicative of prior statements concerning the appellant's relationship with E.F. The newly submitted affidavits, however, directly contradict the earlier affidavits and other evidence concerning the appellant's relationship with E.F., including a VA field investigator's report in which the appellant herself provided a sworn statement that, after the veteran's death, she cohabited with E.F. and held herself out as E.F.'s wife between December 1992 and May 1993. Indeed, the statements were very similar to the statements received during the latter part of the previous appeal. The Board finds that the newly submitted affidavits are inherently incredible. See King, 5 Vet. App. at 21. The newly submitted and inherently incredible affidavits submitted by the appellant and others do not raise a reasonable possibility of substantiating her claim for restoration of death benefits as the veteran's surviving spouse. 38 C.F.R. § 3.156(a). The appellant's sister, A.R., contended in October 2004 that, contrary to her original statement in April 1993 that, after the veteran's death, the appellant and E.F. had cohabited together and held themselves out as husband and wife for approximately 4 months, the appellant's relationship with E.F. "was just a mere sexual relationship" and was not a marital-style relationship. A.R. also attempted to recant her earlier statements regarding the appellant's relationship with E.F. As A.R. herself conceded, her October 2004 affidavit directly contradicted all of her prior sworn and lay statements to VA in which she reported that the appellant and E.F. cohabited together and held themselves out as husband and wife for several months after the veteran's death. As the RO noted in the December 2005 Statement of the Case, A.R.'s newly submitted affidavit also does not alter the fact that a husband and wife relationship existed between E.F. and the appellant for several months after the veteran's death which precluded the appellant from receiving death pension benefits. The appellant's newly submitted lay statements concerning her relationship with E.F. also are inconsistent concerning the true nature of that relationship; however, as with the other newly submitted evidence, the appellant continues to acknowledge the existence of a relationship with E.F. for several months following the veteran's death. As the Board found in June 2004, the appellant's newly submitted lay statements "are patently self-serving and lacking in character for truthfulness." Finally, the certifications concerning the appellant's lack of a criminal record are not germane to the issue of whether the appellant and E.F. cohabited and held themselves out as husband and wife for several months following the veteran's death. In summary, the Board observes that some of this evidence is new, in that the evidence that was of record at the time of the June 2004 Board decision (lay statements, affidavits, and a report of VA field investigation dated in 1994) did not contain the new statements that the appellant provided concerning her relationship with E.F. after the veteran's death. The appellant has never denied the existence of such a relationship following the veteran's death or that it ended in May 1993; this relationship operates as a bar to the appellant's receipt of VA death pension benefits. See 38 C.F.R. §§ 3.55(a)(5), (8). And, as discussed above, the new statements concerning the appellant's relationship with E.F. are inherently incredible because they directly contradict earlier statements. Thus, the Board finds that the evidence that has been presented or secured since June 2004 is not new and material and the appellant's application to reopen a previously denied claim of entitlement to restoration of death benefits as the veteran's surviving spouse is denied. ORDER As new and material evidence has not been received, the claim of entitlement to restoration of death benefits as the veteran's surviving spouse is not reopened. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs