Citation Nr: 1300412 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 08-32 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Legal entitlement to Department of Veterans Affairs (VA) disability benefits. 2. Eligibility to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Manila, the Republic of the Philippines, Regional Office (RO) which determined that the Appellant did not meet the eligibility requirements for receipt of VA benefits. In July 2009, the Appellant was afforded a hearing before the undersigned Veterans Law Judge sitting in Manila, the Republic of the Philippines. A hearing transcript was prepared and incorporated into the record. At the hearing, the Appellant advanced a Motion to Advance on the Docket. In October 2009, the Board granted the Appellant's motion. In November 2009, the Board remanded the Appellant's claim to the RO to submit additional documentary evidence to the National Personnel Records Center (NPRC) and make a new request for verification of service. The RO has complied with the Board remand request, as indicated by NPRC verifications of service in November 2009, September 2010, and December 2010. In February 2010, the RO denied the Appellant's eligibility for a one-time payment from the FVEC Fund, and he appealed this issue. The Board has reviewed both the Appellant's physical claims file and his "Virtual VA" file so as to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In April 1995, the RO determined that the Appellant did not meet the basic eligibility requirements for receipt of VA benefits. The Appellant was informed in writing of the adverse decision and his appellate rights in April 1995. The Appellant did not submit a notice of disagreement (NOD) with the decision. 2. The additional documentation submitted since the April 1995 rating decision is new and material and raises a reasonable possibility of substantiating the Appellant's claim. 3. The United States Army Reserve Personnel Center (USARPC) and the National Personnel Records Center (NPRC) have both certified that the Appellant has no active service, including as either a member of the Philippine Commonwealth Army or a recognized guerrilla, in the service of the Armed Forces of the United States. CONCLUSIONS OF LAW 1. The April 1995 rating decision determining that the Appellant did not meet the basic eligibility requirements for receipt of VA benefits became final; new and material evidence sufficient to reopen a claim of basic eligibility for VA benefits has been received. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a), 20.1105 (2012). 2. The Appellant does not meet the basic eligibility requirements for VA disability benefits. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.4, 3.203 (2012). 3. The Appellant is not eligible for a one-time payment from the FVEC Fund. 38 U.S.C.A. § 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act (ARRA) § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duties to notify and to assist do not apply to a claim if resolution of that claim is based on legal interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In this case, the facts are not in dispute. Resolution of the Appellant's appeal is dependent on interpretation of the regulations pertaining to eligibility for VA disability benefits and payment from the FVEC Fund. As will be shown below, the Board finds that the Appellant has no verified active service; therefore, no reasonable possibility exists that further notice or assistance would aid in substantiating these claims, any deficiencies of VCAA notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Reopening the Claim for Eligibility for VA Disability Benefits The Appellant's claim of basic eligibility/legal entitlement to VA disability benefits was previously denied in an April 1995 rating decision; therefore, the Board will initially address the issue of whether that rating decision is final and, if so, whether new and material evidence has been received to reopen the claim. Generally, absent the filing of a NOD within one year of the date of mailing of the notification of the initial review and determination of an appellant's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2012). The provisions of 38 C.F.R. § 3.156 (2012) direct, in pertinent part, that: (a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. (b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283(1996). See Hodge v. West, 155 F.3d 1356(Fed. Cir. 1998). In making the determination of materiality, "the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet. App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet. App. 510, 513 (1992)). In applying 38 C.F.R. § 3.156(b), the Court has clarified that: When a claim is filed and the RO renders an adverse decision, the claimant has the right to disagree with that decision by filing an NOD within one year from the date of mailing of notice of the decision. 38 U.S.C. § 7105(b)(1). However, "[n]ew and material evidence received prior to the expiration of the appeal period ... will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." Muehl v. West, 13 Vet. App. 159, 161 (1999); see also Bond v. Shinseki, 659 F.3d 1362, 1368-69 (Fed.Cir.2011). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Prior Final RO Decision In April 1995, the RO determined that the Appellant did not meet the basic eligibility requirements for receipt of VA benefits. The Appellant was informed in writing of the adverse decision and his appellate rights in April 1995. The Appellant did not submit a NOD with the decision. The evidence upon which the RO formulated its April 1995 decision may be briefly summarized. A July 1990 affidavit from J. M. states that he served with the Appellant in the Luzon Guerilla Army forces. A November 1990 affidavit from A. C. S. states that he served with the Appellant in the Luzon Guerilla Army forces. A July 1994 Veteran's Application for Compensation or Pension (VA Form 21-526) from the Appellant states that he served with guerilla forces and fought against the occupying Japanese forces from February 1943 to June 1945. An April 1995 report from the United States Army Reserve Personnel Center (USARPC) conveys that the "subject has no service as a member of the Philippines Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces." New and material evidence pertaining to the issue of eligibility for VA benefits was not received by the RO or constructively in its possession within one year of written notice to the Appellant of the April 1995 rating decision. Therefore, the decision is final. 38 C.F.R. § 3.156(b) (2012). New and Material Evidence The additional documentation received since the April 1995 rating decision consists of statements from the NPRC; documentation from the Philippine Army and the Philippine Veterans Affairs Office; May 2009 affidavits from A. M. and N. B. G.; the transcript of the July 2009 hearing before the undersigned Veterans Law Judge; written statements from the Veteran; and private clinical documentation. The May 2009 affidavits from Messrs. M. and G. convey that they had served with the Appellant in the Luzon Guerilla Army forces and fought against the occupying Japanese forces. The May 2009 affidavits, when presumed to be credible for the limited purpose of reopening a claim, when considered with the previously evidence of record, are of such significance that they raise a reasonable possibility of substantiating a claim of eligibility for VA benefits. As new and material evidence has been received, the Appellant's claim of basic eligibility for VA benefits is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Eligibility for VA Benefits For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1110. Basic entitlement for VA disability compensation exists if the veteran is disabled as the result of a personal injury or disease (including aggravation of a condition existing prior to service) while in active service if the injury or the disease was incurred or aggravated in line of duty. 38 CFR § 3.4. Only service department records can establish if and when a person was serving on qualifying active service. Venturella v. Gober, 11 Vet. App. 340, 341(1997); Cahall v. Brown, 7 Vet. App. 232, 237(1994). The service department's findings are binding and conclusive upon VA. VA does not have the authority to alter the findings of the service department. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Report of Separation from the Armed Forces of the United States (DD Form-214), Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge without verification from the appropriate service department under 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. If a claimant does not submit evidence of military service, or the information is insufficient, VA must request the information from the service department. 38 C.F.R. § 3.203. The Appellant did not submit either a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203. In support of his claim, the Appellant did submit several documents. A January 1946 Affidavit for Philippine Army Personnel states that the Appellant had served with the Luzon Guerilla Army forces from October 1944 to January 1946. The July 1994 Veteran's Application for Compensation or Pension (VA Form 21-526) advances that the Veteran had active service from February 1943 to June 1945. The July 1990 sworn affidavit from Mr. C. conveys that he and the Appellant had served with the Luzon Guerilla Army Forces operating against the Imperial Japanese forces. A September 1990 Philippine Veteran Affairs Office Application for Old Age Pension (Veteran) reflects that the Appellant reported having served as a service as a "WWII-guerilla." The November 1990 sworn affidavit from Mr. S. conveys that he and the Appellant served with the Luzon Guerilla Army Forces operating against the Imperial Japanese forces. A September 2007 Certification from the Office of the Adjutant General, Armed Forces of the Philippines states that the Appellant served with the guerilla forces from October 1944 to January 1946. The May 2009 sworn affidavits from Messrs. M. and G. convey that they and the Appellant had served with the Luzon Guerilla Army Forces operating against the Imperial Japanese forces. The Appellant did not submit acceptable evidence of his active service in accordance with the provisions of 38 C.F.R. § 3.203. The RO then sought certification from the service department. In April 1995 the USARPC determined that the Appellant 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 January 2008, March 2008, November 2009, September 2010, and December 2010, the NPRC determined that the Appellant 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 USARPC and the NPRC both certified that the Appellant 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 determination is binding on VA. See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department refuses to verify the claimed service, the applicant's only recourse lies within the service department, not with VA). The Appellant claims to have performed active service including recognized guerilla service during World War II. The service department was unable to verify the claimed service on multiple occasions. In the absence of such verification, the Board concludes that the Appellant does not meet the basic eligibility requirements for VA disability benefits, and the claim of eligibility for VA benefits must be denied. Payment from the FVEC Fund Under the ARRA, a one-time benefit is provided for certain Philippine veterans to be paid from the FEVC Fund. ARRA § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Payments for eligible persons will be either in the amount of $9,000.00 for non-United States citizens or $15,000.00 for United States citizens. For eligible persons who accept a payment from the FEVC, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service." However, nothing in the 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." An eligible person is an individual who served before July 1, 1946, in either 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 in the Philippine Scouts under § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538) and was discharged or released from service described in under conditions other than dishonorable. See ARRA § 1002(d), Pub. L. No. 111-5 (enacted February 17, 2009). The Appellant did not submit acceptable evidence of his active service in accordance with the provisions of 38 C.F.R. § 3.203. The USARPC and the NPRC both certified that the Appellant has no verified service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. For this reason, the Appellant may not be considered a veteran for the purpose of establishing entitlement to a one-time payment from the FVEC Fund. Accordingly, the benefit sought on appeal is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). ORDER Reopening of basic eligibility to VA benefits is granted. Legal entitlement to VA disability benefits is denied. The Appellant is not eligible to a one-time payment from the FEVC Fund. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs