Citation Nr: 1223980 Decision Date: 07/11/12 Archive Date: 07/18/12 DOCKET NO. 10-33 307 ) 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 for entitlement to service connection for the cause of the Veteran's death. 2. Whether new and material evidence has been received to reopen a claim of entitlement to death pension benefits. 3. Entitlement to accrued benefits. WITNESSES AT HEARING ON APPEAL Appellant and Mrs. E.L.M.V. ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had service with the new Philippine Scouts from August 1946 to May 1949. The Veteran died in October 1997. The appellant is the Veteran's widow. These matters come before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Manila, Philippines. The Board acknowledges that the rating decision discussed the issue of entitlement to service connection for the cause of the Veteran's death, but not the other issues on appeal; however, the March 2010 notification letter did inform the appellant that her claims for entitlement to death pension benefits and accrued benefits were also denied. In addition, the pertinent legal criteria and reasons for the denials were provided to the appellant in the July 2010 statement of the case (SOC). In April 2011, the appellant and a witness testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran died in October 1997; the death certificate lists the cause of death as chronic obstructive lung disease. 2. The appellant is the Veteran's widow. 3. In an unappealed December 2003 decision, the Board denied the appellant's claim for entitlement to service connection for the cause of the Veteran's death. 4. The evidence received since the December 2003 Board decision is not new and material because it does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for the cause of the Veteran's death. 5. In an unappealed December 2003 decision, the Board denied the appellant's claim for entitlement to VA death pension benefits 6. The evidence received since the December 2003 Board decision is not new and material because it does not raise a reasonable possibility of substantiating the claim of entitlement to VA death pension benefits. 7. There is no evidence of record that the Veteran was service-connected for any disability at the time of his death, or that he had a claim pending for entitlement to service connection for a disability at the time of his death. 8. The appellant did not file a claim for accrued benefits within one year of the Veteran's death. CONCLUSIONS OF LAW 1. Evidence received since the December 2003 Board decision that denied entitlement to service connection for the cause of the Veteran's death, which was the last final denial with respect to this issue, is not new and material; the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156, 20.1100 (2011). 2. Evidence received since the December 2003 Board decision that denied entitlement to VA death pension benefits, which was the last final denial with respect to this issue, is not new and material; the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156, 20.1100 (2011). 3. There is no legal entitlement to accrued benefits. 38 U.S.C.A. § 5121 (West 1991); 38 C.F.R. § 3.1000 (2011). 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). 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. 2011); 38 C.F.R. § 3.159(b) (2011); 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (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 if service connection is awarded. 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. 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. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court expanded the VCAA notice requirements for a Dependency and Indemnity Compensation (DIC) claim. In Hupp, the Court held that, when adjudicating a claim for DIC, VA must perform a different analysis depending upon whether a Veteran was service-connected for a disability during his or her lifetime. The Court concluded that, in general, section 5103(a) notice for a DIC case must include: (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. In addition, the Court found that the content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. In VA correspondence to the appellant in July 2009, VA informed her of what evidence was required to substantiate the claims, and of her and VA's respective duties for obtaining evidence. The notice also informed the appellant as to the law pertaining to the assignment of an effective date as the Court required in Dingess/Hartman in the event that service connection was granted. The notice did not inform the appellant of the reasons for the prior denials or that the Veteran was not service connected for a disability at the time of his death. Moreover, the notice did not inform the appellant that her claim for entitlement to death pension benefits had been previously denied. The Board finds that the appellant has not been prejudiced by this lack of prior notice, as the evidence reflects that she had actual notice of the reasons for the prior denials and that the record did not contain any prior claim for service connection. Such notice was provided to the appellant in the July 2010 statement of the case (SOC). In addition, the appellant has been previously advised of the legal criteria for death pension benefits when her claim was denied in December 2003. See Shinseki v. Sanders/Simmons, No. 07-1209 (U.S. Sup. Ct. April 21, 2009); 556 U.S. ____ (2009); Fenstermacher v. Phila. Nat'L Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Board also notes that although the appellant had been denied entitlement to death pension benefits by the Board in December 2003, the RO adjudicated her present claim for death pension benefits on a de novo basis. Thus, the appellant has not been prejudiced by any error in Kent notice. Moreover, the Board notes that the VCAA does not apply to claims that, as in the case of the appellant's claims for accrued benefits and death pension, turn on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). See also Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Therefore, the Board finds that no further action is necessary under the VCAA on such issues. Duty to assist With regard to the duty to assist, the claims file contains the Veteran's partially burned service treatment records (STRs), service personnel records, a death certificate, a marriage certificate, doctors' statements, and the statements of the appellant and a witness in support of her claims, to include testimony at a Board hearing. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record for which VA has a duty to obtain. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claims for which VA has a duty to attempt to obtain. The Board notes that VA is not required to obtain a medical opinion for a claimant seeking to reopen a previously and finally disallowed claim prior to a determination that new and material evidence has been received. See Paralyzed Veteran's of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Circ. 2003). Legal criteria New and material evidence In general, Board decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2011). 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, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is 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 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (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 appellant in developing the facts necessary for the 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). Cause of Death The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Service connection- in general Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995), Pond v. West, 12 Vet. App. 341 (1999). In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Court set forth a two-step analysis to evaluate the competency of lay evidence. First, Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury -to determine whether to grant service connection. The Board observes that this Federal Circuit decision is nonprecedential. However, see Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"]. The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of a decision of a superior tribunal, the Federal Circuit. 557 F.3d 1355 (Fed. Cir. 2009). Death Pension Death pension benefits are generally available for surviving spouses, as a result of the Veteran's nonservice-connected death. See 38 U.S.C.A. § 1541(a) (West 2002). An appellant is entitled to these benefits if the Veteran served for 90 days or more, part of which was during a period of war; or, if the Veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected, which would have justified a discharge for disability; and, if the appellant meets specific income and net worth requirements. See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4). Surviving Spouse A "surviving spouse" is defined as a person of the opposite sex who was the spouse of a Veteran at the time of the Veteran's death, and who lived with the Veteran continuously from the date of marriage to the date of the Veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse) and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C.A. § 101(3) (West 2002); 38 C.F.R. § 3.50 (2011). Accrued Benefits Upon the death of a Veteran, periodic monetary benefits to which he was entitled, on the basis of evidence in the file at the date of death (accrued benefits) and due and unpaid, may be paid to certain parties. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c). Although the claim for accrued benefits under 38 U.S.C.A. § 5121 is a matter separate from the Veteran's claims, as it is based upon a separate statutory entitlement of the survivor for which an application must be filed in order to receive benefits, it is at the same time derivative of the Veteran's claims, in that the claimant's entitlement is based upon the Veteran's entitlement. Zevalkink v. Brown, 6 Vet. App. 483 (1994); aff'd, 102 F.3d 1236 (Fed. Cir. 1996). Analysis The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. New and Material Evidence - Cause of Death Historically, the appellant's claim for entitlement to service connection for the cause of the Veteran's death was denied by the Board in December 2003. The appellant did not appeal that decision and it became final. Evidence of record at time of last final denial The evidence of record at the time of the last final denial included private clinical records, service personnel records, STRs, and the appellant's statements. The Veteran's death certificate reflects that he died on October [redacted],1997 at the age of 70. The cause of death as listed on the death certificate was chronic obstructive lung disease. At his death, the Veteran was not service connected for any disability. There is no evidence of record that the Veteran had a claim pending at the time of his death. A May 1949 report of examination for separation purposes reflects no significant abnormalities on examination of the nose, sinuses, mouth and throat, or on X-ray examination of the chest. No respiratory disorder was noted under the summary of pertinent and interval history, and the report summary noted "no physical defect." In a September 2000 letter, F. A., Jr., M.D. certified that he first saw the Veteran in January 1985. At that time, the Veteran was 58 years old and complaining of chronic productive cough, difficulty breathing, afternoon fever, and easy fatigability. He gave a history of cough with bouts of difficulty breathing since being in the Army in 1948. He was diagnosed with bronchial asthma, pulmonary tuberculosis, moderately advanced, and hypertension. The appellant submitted a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, dated February 2001, noting treatment by A. V. from January 1950 to March 1951. Included on the form was a typed note which was stated to be from A. V. It indicated that he had treated the Veteran from January 1950 to March 1951 for bronchial asthma, minimal tuberculosis, afternoon fever, severe coughing and slight spitting up of blood. A. V. noted that original records of treatment could not be submitted because of the lapse of time of almost 50 years and due to wear and tear, and destruction by termites. He reported that the only records of the Veteran which he had retained were laboratory findings which he noted were positive for tuberculosis. Undated laboratory reports for the Veteran were submitted from the Urdenata Sacred Heart Hospital. The claims file contains a certification from the Republic of the Philippines Professional Regulation Commission. The statement, dated June 2001, noted that according to the records of the Commission, A. V. did not appear in the registry books of the Board of Medicine, which contains the names of those duly authorized to practice medicine in the Philippines. A VA memorandum in the claims file notes that A. V. "has been a regular contributor of medical certificates" in support of claims to the Manila RO. It was noted that these certificates usually allege treatment for the specific conditions being claimed for service connection or as the cause of death and often show treatment starting immediately following the veteran's release from active duty. It was noted that A.V. "claims to have completed his medical studies at the University of the Philippines in 1939 and to have passed the licensing examinations in 1940. However, he has been unable to produce any documentation of his medical credentials. An intensive field investigation was conducted in June-July, 2001, which failed to find any evidence of his medical training or credentials to practice medicine. The Professional Regulation Commission has certified he has never been licensed to practice medicine in the Philippines." Evidence of record since the last final denial The claims file includes an affidavit by the appellant dated in December 1999 which reflects that she is the surviving widow of the Veteran, who was a former member of the Armed Forces of the Philippines and participated in several encounters with the Japanese Imperial Army. She stated that upon his discharge from service, the Veteran suffered from tuberculosis and asthma. The claims file also includes a January 2009 statement by the appellant. In January 2009 and July 2009, she provided information regarding the dates and units of the Veteran's service, a marriage certificate, an application for an I.D. card, a copy of a U.S. certificate of nationalization for the Veteran, and a statement from the Office of the City Civil Registrar, dated in July 2009, that the Veteran's cause of death was chronic obstructive lung disease and that he died on October [redacted], 1997. The appellant testified at the April 2011 Board hearing that the Veteran was a soldier and that he "caught his sickness" in service. She further testified that she did not initially meet the Veteran until 1953 and that she married him in April 1954. She further testified that before they married, the Veteran felt there was something "wrong" with his lungs, that it was hard for him to breathe, and that he coughed. Mrs. V. testified that the Veteran was her grandfather and that while he was in the hospital, the doctor told him that he (the Veteran) had gotten his illness during his military service. Mrs. V. testified that she had forgotten the name of the doctor, but that she had already submitted the evidence to the Board. Old and new evidence of record considered as a whole The Board finds that the evidence received since the last final denial is immaterial, duplicative, or cumulative of evidence at the time of the December 2003 Board decision. The appellant contends that the Veteran's COPD was incurred in service. The Board acknowledges that in determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, the appellant has not submitted any different allegations than those previously of record. In addition, 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). The testimony of Mrs. V. that a doctor, whose name she has forgotten, stated that the Veteran's COPD is related to service is presumed to be the statement of the A.V., which was previously of record. This is the only "doctor" statement of record which could in anyway support the appellant's application. There is still no new clinical objective evidence of record or competent and credible lay evidence that the Veteran's COPD was causally related to active service. The appellant's statement that prior to her marriage in 1954, the Veteran had breathing difficulties is not material as she did not meet the Veteran until 1953, four years after separation from service, thus, she is not competent to testify as to the Veteran's condition in service, upon separation from service, or in the four years after separation from service. While the appellant continues to assert that the Veteran's death was due to service, such a contention, without medical evidence or without competent lay evidence of continuity of symptoms, is simply not sufficient to reopen the previously finally denied claim. The Board finds that the evidence added to the record since the last final denial, when considered in conjunction with the record as a whole, does not raise a reasonable possibility of substantiating the claim, and as such, is not new and material to reopen the claim. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2010), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). New and Material Evidence - Death Pension Historically, the appellant's claim for entitlement to death pension benefits was denied by the Board in December 2003. The appellant did not appeal that decision and it became final. Much of the evidence of record at the time of the last final denial and subsequent to the last final denial has been described above. In addition, the evidence at the time of the last final denial included official service department information. It reflects that the Veteran served on active duty in the New Philippine Scouts from August 16, 1946 to May 10, 1949. The Veteran's Enlisted Record and Report of Separation, WD AGO Form 53, reflects that he entered active service on August 16, 1946 and separated from active service on May 10, 1949. In November 2000, the service department certified that the Veteran served on active duty from August 16, 1946 to May 10, 1949. The service department also certified that the Veteran had been a Philippine Scout. Old and new evidence of record considered as a whole The Board finds that the evidence received since the last final denial is immaterial, duplicative, or cumulative of evidence at the time of the December 2003 Board decision. As noted in its December 2003 decision, the Board does not dispute the fact that the appellant is the Veteran's widow as defined by VA laws and regulations or that the Veteran had service as a Philippine Scout from August 1946 to May 1949. However, the appellant is ineligible for death pension benefits based on the Veteran's service. The Veteran's enlistment as a Philippine Scout was in August 1946, under Section 14, Public Law 190, 79th Congress, as that was the only authority for enlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947. 38 C.F.R. § 3.8(b). Service records show the Veteran was not commissioned as an officer during this period. By law, unlike service in the Regular Philippine Scouts or "old" Scouts, such service is not deemed to be qualifying service for death pension benefits. 38 C.F.R. § 3.40. The Court has held that "VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces." Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces. Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). The appellant has not provided any evidence that the Veteran served on active duty during any period not already noted or that he had any service which would make her eligible for death pension benefits. The appellant has not disputed the fact that the Veteran served in the New Philippine Scouts from August 16, 1946 to May 19, 1949. She does not contend that the Veteran served on active duty during any additional period. Accordingly, basic eligibility for VA death pension benefits must be denied as a matter of law. 38 U.S.C.A. §§ 101(2), 107, 1521, 1541, 5107(a) (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.40, 3.41 (2003); see Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board finds that the evidence added to the record since the last final denial, when considered in conjunction with the record as a whole, does not raise a reasonable possibility of substantiating the claim, and as such, is not new and material to reopen the claim. Accrued Benefits The Board finds that the appellant is not entitled to accrued benefits. The Board notes that the appellant filed a claim for accrued benefits in 2009, approximately 10 years after the death of the Veteran. Claims for accrued benefits must be filed within one year after the date of the Veteran's death. 38 C.F.R. § 3.1000 (c). The Board has reviewed the evidence of record but cannot find any credible indication that a claim for accrued benefits was filed within one year of the Veteran's death. (The Board notes that there is no evidence of record that the 38 U.S.C.A. § 3.1001 or 3.1008 are applicable.) In addition, the Board notes that the evidence of record does not reflect that the Veteran had a claim for entitlement to service connection for a disability, or a claim for any other VA benefit, pending at the time of his death. The law is dispositive of this issue; thus, the appellant's claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (CONTINUED ON NEXT PAGE) ORDER Since new and material evidence has not been received to reopen the claim of entitlement to service connection for the cause of the Veteran's death, the claim is not reopened, and the appeal is denied. Since new and material evidence has not been received to reopen the claim of entitlement to death pension benefits, the claim is not reopened, and the appeal is denied. Entitlement to accrued benefits is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs