Citation Nr: 0813477 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-02 377 ) 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 reopen a claim to establish basic eligibility requirements for Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION This matter is on appeal to the Board of Veterans' Appeals (Board) from a June 2004 decision of the VA Regional Office (RO) in Manila, the Republic of the Philippines, which determined that new and material evidence had been submitted to reopen the appellant's claim to establish basic eligibility requirements for VA benefits, but denied the claim on its merits because the appellant lacked status as a veteran. Although it appears as though the RO adjudicated the issue on the merits, the Board is required to determine whether new and material evidence has been presented when a claim has been previously disallowed based upon the same factual basis. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). Thus, the issue on appeal is as stated on the title page. A motion to advance this case on the Board's docket was received and granted by the Board in April 2008, for good cause. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. The claim to establish basic eligibility requirements for VA benefits was denied in a May 2002 Board decision. The veteran was notified of this decision and of his appeal rights. He did not appeal the decision. 2. Since the May 2002 Board decision which denied the claim to establish basic eligibility requirements for VA benefits, evidence that relates to an unestablished fact necessary to substantiate the claim has not been presented or secured. CONCLUSION OF LAW The May 2002 Board decision, which denied the claim to establish basic eligibility requirements for VA benefits, is final, and evidence received since that decision is not new and material. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. §§ 3.156, 20.1100, 20.1105 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Applicable Laws and Regulations A. New and Material Pursuant to 38 U.S.C.A. § 7104(b), when a claim is disallowed by the Board, it may not thereafter be reopened and allowed, and no claim based upon the same factual basis shall be considered. 38 U.S.C.A. § 7104(b). The exception to this rule is described under 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the [Board] shall reopen the claim and review the former disposition of the claim." Therefore, once a final decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. §§ 3.156, 20.1105; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Additionally, when determining whether the claimant has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). In Evans, the United States Court of Appeals for Veteran Claims (Court) indicated that the newly presented evidence need not be probative of all the elements required to award the claim, but need only tend to prove each element that was a specified basis for the last disallowance. Id. at 284. B. Basic Eligibility In order to be eligible for benefits administered by the VA, the evidence must establish that the individual seeking benefits is a veteran. The term "veteran" is defined in 38 U.S.C.A. § 101(2) as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. Under 38 C.F.R. §§ 3.40 and 3.41, certain service with the Commonwealth Army of the Philippines, with the Philippine Scouts, and guerrilla service is included for VA benefits purposes. Under 38 C.F.R. § 3.203(a), the VA may only accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from appropriate U.S. Service department if the evidence meets the following conditions: (1) the evidence is a document issued by the United States service department; (2) the document contains needed information as to length, time, and character of service; and (3) in the opinion of VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a), the VA shall request verification of service from the service department. See 38 C.F.R. § 3.203(c). Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and the VA has no authority to amend or change their decision. The Court has held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon the VA. See Spence v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). II. Decision In May 2002, the Board denied the appellant's claim for VA benefits on the basis that he was not recognized as a "veteran" for VA purposes since he did not have verified active military service with the U.S. Armed Forces. Evidence of record at that time included a Philippine Army discharge form that showed his enlistment in August 1941 and separation in October 1946, an Affidavit for Philippine Army Personnel that chronologically detailed the appellant's activity in service, which included being a prisoner of war (POW) from April 10, 1942 until May 31, 1942, a March 1945 letter of recommendation indicating that the appellant rendered faithful service to the Seventh Cavalry between February 1, 1945 and March 15, 1945, various letters submitted by service comrades attesting to his claimed military service, a letter from the National Adjutant of the Defenders of Bataan and Corregidor, Inc. that noted the appellant was a member of good standing in the organization, the appellant's name listed in a copy of the 41st Division roster used to establish membership in the Defenders of Bataan and Corregidor, Inc., the appellant's application for compensation benefits, and testimony elicited during an October 1999 decision review officer (DRO) hearing and a June 2001 Board hearing. More importantly of record was the June 1999 verification report by the National Personnel Records Center (NPRC), which stated that the "[s]ubject has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces." The Board acknowledged the appellant's submission of several documents in support of his contention that he had the requisite service, but noted that VA is bound by the NPRC determination and must find that the veteran does not have the requisite service for VA benefits. The Board notified the veteran of this decision in May 2002. The veteran did file notice of appeal to the Court, but failed to comply with the Court's filing procedures. In a January 2003 order, the Court dismissed the appellant's appeal. Consequently, the May 2002 decision became final based on the evidence of record at that time. 38 U.S.C.A. § 7104(b); 38 C.F.R. §§ 20.1105. Evidence received since the last final disallowance includes private medical records reflecting the appellant's current physical condition, various written statements submitted by the appellant in advancing his claim, photographed copies of the appellant's dog tags and service medals, photographs of the appellant with the Defenders of Bataan and Corregidor, a photograph of the Veterans Memorial Marker in Marikina City Hall which list the appellant's name under "The Defenders," and testimony from an April 2004 DRO hearing. Also of record are numerous military documents, a July 1954 POW certificate with the appellant's name misspelled; a June 2003 Certification form from the General Headquarters, Armed Forces of the Philippines; a July 1946 Medical Detachment form from the 1st General Hospital; and several affidavits, all indicating that the appellant served with the United States Armed Forces of the Far East (USAFFE). Also of record is a May 2004 VA Form 21-3101, from the NPRC, which reported again that the appellant has no recognized guerilla service nor was he a member of the Philippine Commonwealth Army in the service of the United States Armed Forces. The NPRC noted that there was no change warranted in the prior negative certification, even taking into consideration the variations listed in regards to the appellant's last name as well as his service number. The RO's continued denial in this case has been predicated upon the fact that none of the evidence offered in support of the appellant's claim has been an official document of a United States service department. In this case, various documents from the Philippine Army were submitted in an effort to establish entitlement to VA benefits. However, none of the documents indicate that the appellant has any service that would rendered him eligible for VA benefits. Moreover, the Board notes that the Philippine government has its own laws and regulations which permit recognition of military service that is not recognized by the U.S. Army. Therefore, the evidence submitted by the appellant, copies of some of which he later resubmitted, is not probative of his service in the United States Armed Forces. Inasmuch as the service department's verification of service is binding on VA and there is no valid evidence of service under 38 C.F.R. § 3.203, the Board must conclude that these documents do not raise a reasonable possibility of substantiating the underlying claim, and therefore are not material evidence. See 38 C.F.R. § 3.156(a); Villalobos v. Principi, 3 Vet. App. 450 (1992) [evidence that is unfavorable to a claimant is not new and material]. Accordingly, the claim to establish eligibility for VA benefits is not reopened. In summary, and for the reasons and bases set forth above, the Board finds that the evidence received in conjunction with the claim to reopen is not new and material, and does not serve to reopen the claim to establish eligibility for VA benefits. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Having found that the evidence is not new and material, no further adjudication of this claim is warranted. See Kehoskie v. Derwinski, 2 Vet. App. 31 (1991). III. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. In a January 2004 letter and February 2004 decision, the RO informed the appellant of its duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon his claim. The Board concludes that the January 2004 VCAA letter and February 2004 decision informed the appellant of the information and evidence needed to substantiate the claim and complied with the VA's notification requirements. He was notified of the criteria for meeting the basic eligibility requirements for VA benefits and the reasons that his claim had been denied. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. During the pendency of this appeal, on March 31, 2006, the Court issued a decision in the appeal of Kent v. Nicholson, 20 Vet. App. 1 (2006), which establishes new requirements regarding the VCAA notice and reopening claims. The Court held that the VCAA notice must include the bases for the denial in the prior decision and VA must respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (holding evidence is material if it is relevant to and probative of an issue that was a specified basis for the last final disallowance). The veteran has been apprised of the information necessary to reopen his claim in the February 2004 decision. As to informing the appellant of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had a duty to obtain any records held by any federal agency. It also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. The RO told the appellant that he could obtain private records himself and submit them to VA. Finally, he was told to submit any evidence in his possession that pertained to the claim. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained. The evidence includes the statements from the National Personnel Records Center denying record of the appellant's service. The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the appellant's claim. The Board finds that the evidence of record provides sufficient information to adequately evaluate the appellant's claim for entitlement to VA benefits. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER New and material evidence not having been presented, the application to reopen a claim to establish basic eligibility requirements for VA benefits is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs