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