Citation Nr: 1129294 Decision Date: 08/09/11 Archive Date: 08/16/11 DOCKET NO. 09-47 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of basic eligibility for legal entitlement to VA benefits. 2. Basic eligibility for legal entitlement to VA benefits, to include a one time payment from the Filipino Veterans Equity Compensation Fund. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). This case comes before the Board of Veterans' Appeals (Board) from a May 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. In that decision, the RO denied entitlement to compensation under the Filipino Veterans Equity Compensation Fund. The basis for the denial was the appellant's lack of basic eligibility for legal entitlement to VA benefits. As this was the basis for the prior denials of the appellant's claims, including the Board's January 2007 denial (as discussed below), the Board will first address whether new and material evidence has been received to reopen a claim to establish basic eligibility for legal entitlement to VA benefits. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996) (The Board must address whether new and material evidence has been received subsequent to prior Board denial regardless of whether or not the RO reopened the claim on appeal); 38 C.F.R. § 20.1105 (2010) (requiring consideration of whether evidence submitted after appellate decision has been promulgated is new and material and, if it is, whether it provides a basis for allowing the claim). FINDINGS OF FACT 1. In a January 2007 decision, the Board denied the appellant's application to reopen his claim of entitlement to basic eligibility for VA benefits. 2. Evidence received since the January 2007 decision relates to the basis for that most recent prior denial of the claim. 3. The appellant is not shown to have had active military, naval, or air service, and is not an individual or a member of a group considered to have performed active military, naval, or air service. CONCLUSIONS OF LAW 1. The Board's January 2007 decision denying the application to reopen a claim as to whether the appellant is a veteran for purposes of establishing basic eligibility for VA benefits is final. 38 U.S.C.A. §§ 7103(a), 7104(a),(b), 7261 (West 2002); 38 C.F.R. §§ 20.1100(a), 20.1104, 20.1105 (2010). 2. Evidence received since the January 2007 decision is new and material and the application to reopen a claim as to whether the appellant is a veteran for purposes of establishing basic eligibility for VA benefits is granted. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 3. The appellant does not have status as a veteran for purposes of his claim for a one time payment from the Filipino Veterans Equity Compensation Fund, and therefore does not meet the requirements of basic eligibility for these VA benefits. 38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). As the Board will grant the application to reopen, the application has been substantiated, and there are no further VCAA duties with regard to it. Wensch v. Principi, 15 Vet. App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). As to the reopened claim the VCAA need not be considered because the issue presented is solely one of statutory interpretation and the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). As discussed below, the facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to the type of service that qualifies an individual for eligibility for compensation under the Filipino Veterans Equity Compensation Fund. The VCAA is therefore inapplicable. Analysis Generally, a Board decision is final unless the Chairman of the Board orders reconsideration, or an appeal to United States Court of Appeals for Veterans Claims (the Court) results in the Board's decision being vacated. See 38 U.S.C.A. §§ 7103(a), 7104(a), (b), 7261(a)(3); 38 C.F.R. § 20.1100(a), 20.1104. An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. § 7104(b) (noting exception to finality of Board decisions in 38 U.S.C.A. § 5108); 38 C.F.R. § 20.1105 (requiring consideration of whether evidence submitted after appellate decision has been promulgated is new and material). For applications to reopen received after August 21, 2001, new evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In this case, the appellant seeks to establish basic eligibility for VA benefits, including a one time payment from the Filipino Veterans Equity Compensation Fund, discussed below. Generally, in order to receive VA benefits, there must be proof of veteran status. Regardless of the particular benefit sought, if veteran status is not established, the claimed benefit fails as a matter of law. Here, prior claims of the appellant were denied because he did not have veteran status. Although he now claims a different benefit, the prior determinations that the appellant did not have veteran status are final and binding decisions as to his eligibility for VA benefits. The issue before the Board is therefore whether there is new and material evidence to reopen the prior decisions regarding recognition of veteran status for purposes of eligibility for VA benefits. The Board denied the appellant's application to reopen his claim of basic eligibility for legal entitlement to VA benefits in January 2007, the same claim having been previously denied in March 2004. Although notified of this decision, the Veteran neither sought reconsideration nor appealed to the Court. Consequently, the January 2007 Board decision became final. See 38 U.S.C.A. §§ 7103(a), 7104(a), (b), 7261(a)(3); 38 C.F.R. § 20.1100(a), 20.1104. 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. There are particular laws and regulations regarding individuals who served in the organized military forces of the Government of the Commonwealth of the Philippines while these forces were in the service of the armed forces of the United States pursuant to a July 26, 1941 military order of the President. 38 U.S.C.A. § 107(a) provides that service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States, will not be deemed to have been active military, naval, or air service except for specified benefits including disability compensation benefits authorized by chapter 11, title 38, United States Code. Under 38 C.F.R. § 3.40, certain service with the Commonwealth Army of the Philippines, with the Philippine Scouts, and guerilla service is included for VA benefits purposes. These include service of persons enlisted under section 14, Public Law 190, 79th Congress (Act of October 6, 1945). Under 38 C.F.R. § 3.203(a), the VA may 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 the appropriate service department, if the evidence meets the following conditions: (1) The evidence is a document issued by the service department. A copy of an original document is acceptable if the copy is issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; and (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. 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), VA is required to 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). Under the recently enacted American Recovery and Reinvestment Act, a new one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund." American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Payments for eligible persons will be either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service ...." However, nothing in this act "prohibit[s] a person from receiving any benefit (including health care, survivor, or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of this Act." Section 1002 (d) provides that an eligible person is any person who--(1) served--(A) before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States; or (B) in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable. Section 1002(j)(2) of the law also provides that VA will administer its provisions in a manner consistent with VA law including the definitions in 38 U.S.C.A. § 101 except to the extent otherwise provided in the statute. Evidence of record at the time of the Board's January 2007 denial included Philippine Army documentation of the appellant's military service and discharge, a 1944 United States Army enlistment record showing that he was inducted in the 121st infantry of the U.S, Army, affidavits from fellow Philippine Army personnel, a February 1946 affidavit of Philippine Army Personnel from the appellant reporting that he sustained a shrapnel wound in February 1945 and received a Purple Heart medal, the appellant's own statements pertaining to his service, July 1979 and June 2002 Service Department certifications showing that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces, the transcript of an August 2004 RO hearing at which the appellant displayed a Purple Heart medal which he claimed was awarded for a February 1945 shrapnel wound, and a May 1944 U.S. Army enlistment record, showing an induction oath that was sworn before G.M. Barnett, a U.S. Army major. Evidence received since the Board's January 2007 denial includes a Form 23, Special Orders, Clearance Slip and Form 38, Report of Physical Examination, dated February and April 1946, respectively. Based on these documents, which gave specific units of assignment, the RO attempted to re-verify Veteran's service with the National Personnel Records Center (NPRC), pursuant to Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008). In that case, the Federal Circuit held (in the context of a Dependency and Indemnity Compensation claim), that where service department certification of a veteran's active service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department. The Federal Circuit also held that it was a violation of VA's duty to assist not to request service department review of additional or new documents or evidence provided by an appellant concerning a Veteran's active service after the initial service department certification. See Capellan, 539 F.3d at 1380-81. The Federal Circuit further held that 'the correct interpretation of the governing statues and regulations requires that a claimant's new evidence be submitted and considered in connection with a request for "verification of service from the service department" pursuant to 38 C.F.R. § 3.203(c)." Id. Given that the RO found that there was new evidence warranting attempted re-verification of the appellant's service, thus indicating the possibility that the appellant had the requisite service, and being cognizant of the low threshold for determining whether new and material evidence has been received, the Board finds that the new evidence is material, as it related to the basis for the prior denial of the claim. However, for the following reasons, the reopened claim must be denied. In its September 2010 response, the NPRC indicated that the appellant had no service as a member of the Philippine Commonwealth Army including the recognized guerillas, in the service of the United Stated Armed Forces. As noted above, the Court has held that a service department determination as to whether an individual had qualifying service is binding on VA. The service department, i.e., the NPRC, has determined that the appellant had no qualifying service, and the appellant has submitted no evidence to the contrary that complies with the requirements of 38 C.F.R. § 3.203(a), As the service department's determination as to the service of the appellant is binding on VA, the Board concludes that the appellant is not considered a "veteran" for purposes of entitlement to VA benefits. Veteran status is a prerequisite to entitlement to payment from the Filipino Veterans Equity Compensation Fund. Therefore, the appellant's claim for entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The application to reopen a claim of basic eligibility for legal entitlement to VA benefits is granted. Legal entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs