Citation Nr: 0814638 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-32 615 ) 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 for basic eligibility for Department of Veterans' Affairs death benefits. WITNESSES AT HEARING ON APPEAL The Appellant and her son ATTORNEY FOR THE BOARD Robert L. Grant, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2006 decision of 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 submitted to reopen a previously denied claim. The appellant, the surviving spouse of an individual who reportedly had "active service" during World War II, appealed that decision to the BVA and the case was referred to the Board for appellate review. FINDING OF FACT The evidence associated with the claims file subsequent to the June 2003 RO decision is either cumulative or redundant, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The June 2003 RO decision, which denied basic entitlement to VA death benefits, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. The evidence received subsequent to the RO's June 2003 decision is not new and material, and the claim for basic entitlement to VA death benefits is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was accomplished by way of a letters from the RO to the appellant dated in September 2007 and November 2007. Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO also provided assistance as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The appellant has been kept informed of the RO's actions in this case by way of the Statement of the Case, and been informed of the evidence considered, the pertinent laws and regulations and a rationale for the decision reached in denying the claim. The appellant has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced her in the adjudication of her appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the appeal. In May 2003 the appellant filed an original application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse based on her status as the surviving spouse of a "veteran." A denial of that claim was issued in June 2003 based upon the fact that the National Personnel Records Center (NPRC) certified that the appellant's deceased 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. The appellant was notified of that decision and of her appellate rights, but did not appeal that decision. That decision is now final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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). Since June 2003, the appellant has submitted the affidavits of S.C., F.G, and N.F. The affidavits were executed in March of 1946 and assert that the affiants were members of the appellant's spouse's regiment and personally knew the appellant's spouse during service. Also submitted since June 2003 is a PA AGO Form 23, Affidavit for Philippine Army Personnel, executed by the appellant's spouse in March 1946. It asserts that the he was inducted into the USAFFE in November 1941 and served with the 63rd Infantry Regiment as a private first class until that unit was disbanded in May 1942. The appellant's spouse additionally states that he served as a guerilla from December 1942 until approximately April 1945. Also included in the record is a request by the RO in June 1978 to the U.S. Army requesting information on the appellant's spouse. A response in September 1978 indicated that the appellant's husband was not found to have a service record with the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Additional requests for information were made in July 1979 and again in May of 2003 with the same result. A hearing was held before the BVA in January 2008. At that time, the appellant and her translator pointed to the above- mentioned Affidavit for Philippine Army Personnel as evidence of proof of service which would entitle the appellant to VA death benefits. The appellant candidly testified that she had no documents from the United States Government showing that her husband had performed active service during World War II. A thorough review of the evidence submitted indicates that at least the affidavit of F.G. was submitted prior to the June 2003 final decision and therefore does not constitute new evidence. As to the affidavits of S.C. and N.F, as well as the Affidavit of Philippine Army Personnel, those documents constitute new evidence, but do not constitute material evidence. These documents do not relate to an unestablished fact necessary to substantiate the claim, namely the question of whether the appellant's husband was entitled to veteran's benefits based on verified service in the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Title 38 of the United States Code authorizes the Secretary of VA (Secretary) to prescribe the nature of proof necessary to establish entitlement to veterans' benefits. 38 U.S.C.A. § 501(a)(1) (West 2002). Under that authority, the Secretary has promulgated 38 C.F.R. § 3.203(a) and (c), to govern the conditions under which the VA may extend veterans' benefits based on service in the Philippine Commonwealth Army. Those regulations require that service in the Philippine Commonwealth Army (and thus 'veterans' status) be proven with either official documentation issued by a United States service department or verification of the claimed service by such a department. See 38 C.F.R. § 3.203(a) (requiring service department documentation of service where available), § 3.203(c) (requiring service department verification of service where documentation is not available). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on such matters is conclusive and binding on the VA. Duro v. Derwinski, 2 Vet. App. 530 (1992); 38 C.F.R. § 3.203(c). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies with the relevant service department, not with VA. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). In short, under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based upon Philippine service unless a United States service department documents or certifies their service. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). The Board also notes that persons with service in the Philippine Commonwealth Army, USAFFE (U.S. Armed Forces, Far East), including the recognized guerrillas, or service with the New Philippine Scouts under Public Law 190, 79th Congress shall not be deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to VA non-service-connected death pension benefits. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. In light of the above, the documents submitted by the appellant fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as this is not an official document of the appropriate United States service department, and is without the official seal. The documents therefore are not acceptable as verification of the appellant's deceased spouse's service for the purpose of receiving VA benefits, and are therefore not material to an unestablished fact in this matter. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Absent evidence which is both new and material to the question of the decedent's entitlement to veteran's benefits, reopening of the appellant's claim is not warranted. ORDER New and material evidence has not been presented to reopen a claim for basic eligibility for VA death benefits, and the appeal is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs