Citation Nr: 0814088 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 04-30 314 ) 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 establish legal entitlement to VA death benefits. ATTORNEY FOR THE BOARD P. Sorisio, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2003 letter determination of the Department of Veterans Affairs (VA), Regional Office (RO) in Manila, the Republic of the Philippines. This matter was previously before the Board in June 2006 and was remanded for further development. FINDINGS OF FACT 1. In an unappealed June 2000 letter determination, the RO denied the appellant's request to reopen a claim of entitlement to VA death benefits, which was originally denied (in May 1987) on the basis of no recognized military service with the Armed Forces of the United States. 2. Evidence added to the record since the June 2000 letter determination is not new, it is essentially cumulative of the evidence previously of record and does not provide a reasonable possibility of substantiating the claim of entitlement to VA death benefits. CONCLUSIONS OF LAW 1. The RO's June 2000 determination is final as to the claim of entitlement to VA death benefits. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. New and material evidence has not been received since the June 2000 letter determination and the appellant's claim of entitlement to VA death benefits, is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned in the event of award of benefits sought. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court issued a decision that established new requirements with respect to the content of the VCAA notice for reopening claims. According to the Court, in the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant 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. Regarding the claimant's petition to reopen the claim for entitlement to VA death benefits, VA satisfied its duty to notify as to the claim by means of a January 2007 letter from the RO to the appellant. The letter informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. The appellant was also asked to submit pertinent evidence and/or information in her possession to the AOJ. The January 2007 letter also referenced a previous final denial of a claim for entitlement to VA death benefits. The Board notes that the January 2007 letter appears to contain an error as to the exact date of the previously denied claim. However, the Board finds this error to be nonprejudical because the January 2007 letter substantially complied with the requirements of Kent. Additionally, the January 2007 letter informed the appellant that the claim was previously denied based on a lack of verified military service of the appellant's deceased spouse by the National Personnel Records Center (NPRC) and that the appellant must submit evidence related to this. Lastly, the January 2007 letter informed the appellant as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess/Hartman. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision. Because the VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although the notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter, and the appellant has not been prejudiced thereby. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), Dingess/Hartman, and Kent. After the notice was provided, the case was readjudicated and a Supplemental Statement of the Case was provided to the appellant. The appellant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices. Therefore, not withstanding Pelegrini, to decide the appeal would not be prejudicial to her. Duty to assist With regard to the duty to assist, the claims file contains documents regarding the appellant's deceased spouse's service and responses from the U.S. Army Reserve Personnel Center (ARPERCEN) (now U.S. Army Reserve Personnel Command (ARPERSCOM)). Additionally, the claims file contains the appellant's statements in support of her claim. The Board has carefully reviewed her statements and concludes that there has been no identification of further available evidence not already of record. Indeed, the appellant submitted a VCAA Notice Response, dated in February 2007, indicating that she had no more information or evidence to give to VA to substantiate her claim. The Board has also perused the available records for references to additional pertinent information, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim. The Board notes that the appellant noted in a statement in support of her claim, dated in February 2007, that she could not get a "Dr. Certificate" regarding her spouse because the hospital in the Philippines informed her that all records were destroyed after five years. As such, the Board finds that further development would serve no useful purpose and would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to her claim. Essentially, all available evidence that could substantiate the claim has been obtained. New and material evidence If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). In this regard, the RO, as noted in the November 2003 letter determination, found that new and material evidence had not been submitted and denied reopening the claim. The November 2003 letter decision noted that the appellant had not provided any new or different identifying information from that which was previous submitted to the U.S. Department of the Army and that was the basis for previous negative service certification. Nevertheless, the question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. It should be pointed out that VA promulgated amended regulations implementing the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). There was a new provision, 38 C.F.R. § 3.156(a), which redefines the definition of "new and material evidence." This provision is applicable only for claims filed on or after August 29, 2001. The appellant's petition to reopen the claim for entitlement to VA death benefits was received in 2003. As such, the amended provision is for application in this case and is set forth below. The Board notes that the March 2007 supplemental statement of the case discussed the "old" version (prior to August 29, 2001) of 38 C.F.R. § 3.156(a) concerning new and material evidence. However, the Board finds no prejudice in proceeding with this decision because the appellant was informed of the version of 38 C.F.R. § 3.156(a) in effect from August 29, 2001 in the May 2004 statement of the case and in a January 2007 notice letter. "New" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means 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 the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim). Discussion Historically, the appellant filed an application for Dependency and Indemnity Compensation (DIC), a VA Form 21- 534, in 1986. The appellant has alleged that her deceased husband had certified service with the U.S. Armed Forces of the Far East (USAFFE) and recognized Philippine guerrilla service during World War II. He died in July 1962. Using the provided identifying evidence, the RO submitted a request to verify the appellant's deceased husband's service. The ARPERSCOM responded on a VA Form 70-3101, dated in March 1987, and indicated that the subject had "no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces." In a letter dated May 7, 1987, the appellant was informed that her claim for VA death benefits was denied because there was no record that her husband was a member of the Philippine Commonwealth Army, USAFFE, inducted into the service of the Armed Forces of the United States or that he had had recognized guerrilla service. The appellant did not perfect an appeal of this decision, and it became final. 38 U.S.C.A. § 7105. The most recent final denial in this case was a June 2000 letter determination which advised the appellant that her claim would not be reopened because no new identifying information was provided to warrant submission of a request for reverification of military service. The June 2000 letter informed the appellant of the identifying information used when the original application for death benefits was filed. The June 2000 letter also asked the appellant to provide the correct information if she noticed that any of the identifying information listed in the letter was incorrect. The appellant was provided her rights to appeal. The appellant did not appeal the June 2000 letter determination and it became final. Id. The Board will now review the evidence of record at the time of the last final denial in June 2000. Prior to June 2000, the record contained a certificate of the appellant's spouse's death; a "CERTIFICATION" from the Republic of the Philippines (signed by an assistant adjutant general), dated in September 1984; a VA Form 21-534; a VA Form 70-3101; a joint affidavit, received in August 1989; and correspondence from the appellant. From the available evidence just noted, the identifying information for the appellant's husband included his name, service number, date of birth, place of birth, date of death, dates of claimed service, discharge status, and military status/rank. The evidence added to the record subsequent to the most recent denial for entitlement to VA death benefits includes a statement by the appellant, a buddy statement, "CERTIFICATIONs" dated in December 1999 and October 1990, and another VA Form 21-534, application for DIC. After a review of the evidence submitted by the appellant since the last final denial in June 2000, the Board finds that it is cumulative and redundant of the evidence of record at the time of the last prior final denial and it does not raise a reasonable possibility of substantiating the claim. The new evidence received contained the exact same identifying information for the appellant's deceased husband. In this regard, the Board notes a Memorandum for the File, dated in August 2004, reiterated the information that was sent to the NPRC by a VA Form 3101 in an attempt to verify the appellant's husband's military service. The Board acknowledges the appellant's statements that her husband had the requisite service to qualify her to receive VA death benefits. However, the documents submitted by the appellant do not meet the first requirement of 38 C.F.R. § 3.203(a) as they were not issued by a United States service department. The appellant has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the U. S. Armed Forces. As noted above, VA sought service department verification of whether the appellant's husband served in the U.S. Armed Forces in the Philippines (and whether he had guerrilla service). Again, in March 1987, the ARPERCEN certified that the appellant's spouse had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. This certification is binding on VA; VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet. App. 530 (1992). The appellant has provided no further evidence that would warrant a request for re- certification from the service department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). The Board also notes that the appellant's statements are cumulative of contentions considered in the two prior final denials. As such, the Board finds that new and material evidence has not been received to reopen a claim of entitlement to VA death benefits as the evidence provided is merely cumulative and redundant of the evidence of record at the time of the last final prior denial. The Board has considered the doctrine of giving the benefit of the doubt, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2007), but does not find that the evidence is of such approximate balance as to warrant its application. ORDER New and material evidence not having been received, the claim of entitlement to VA death benefits is not reopened. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs