Citation Nr: 1310328	
Decision Date: 03/27/13    Archive Date: 04/09/13

DOCKET NO.  01-04 537A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Manila, the Republic of the Philippines


THE ISSUES

1.  Whether new and material evidence to reopen the claim as to basic eligibility for entitlement to VA benefits has been received.

2.  Basic eligibility for entitlement to VA benefits.


REPRESENTATION

Appellant represented by:	Deanne L. Bonner, Attorney


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

In April 1998, the Board of Veterans' Appeals (Board) denied a claim for VA benefits on the basis that the appellant did not have any period of recognized military service for VA benefits purposes. 

This appeal to the Board of Veterans' Appeals (Board) arose from an October 2000 decision, in which the RO denied the Veteran's request to reopen the matter of his basic eligibility for entitlement to VA benefits. 

The appellant filed a notice of disagreement (NOD) with the October 2000 RO decision in February 2001, and the RO issued a statement of the case (SOC) in March 2001.  The appellant filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in May 2001. 

In September 2001, the appellant testified during a hearing before RO personnel: a transcript of that hearing is of record.  In January 2002, the RO issued a supplemental SOC (SSOC) reflecting its continued denial of the petition to reopen. 

In July 2002, the appellant testified during a Board hearing before the undersigned Veterans Law Judge, at the RO in Chicago, Illinois; a transcript of that hearing is also of record. 

In September 2003 and in April 2006, the Board remanded the petition to reopen the previously denied claim to the RO, via the Appeals Management Center (AMC) in Washington, DC.  Subsequent to each remand, the AMC continued to deny the request to reopen (as reflected in December 2005, January 2006, and February 2009 SSOCs), and returned this matter to the Board for further appellate consideration. 

In April 2009, the Board issued a decision denying the appellant's petition to reopen his claim of basic eligibility for entitlement to VA benefits.  In April 2010, a Deputy Vice Chairman of the Board denied the appellant's motion for reconsideration of the April 2009 Board decision.

On June 25, 2010, the appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  By Memorandum Decision dated May 23, 2012, the Court set aside the Board's April 2009 decision and remanded the claim for further development and readjudication.

In June 2012, VA received a properly executed VA Form 21-22a (Appointment of Individual as Claimant's Representative) which granted a power of attorney on behalf of Attorney Bonner.  This form revokes a previous power of attorney granted to the Disabled American Veterans.

A review of the Virtual VA electronic records storage system does not reflect any additional, pertinent evidence which is not currently associated with the paper claims file.

This appeal has been advanced on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). 

Regarding characterization of the appeal, it is noted that, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection.  That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  As the Board must first decide whether new and material evidence to reopen the claim has been received-and, in view of the Board's favorable decision on the request to reopen-this appeal has been recharacterized as encompassing both matters set forth on the title page.


The Board's decision on the petition to reopen the claim for basic eligibility for entitlement to VA benefits is set forth below.  The underlying claim is addressed in the remand following the order; this matter is being remanded to the RO.  VA will notify the appellant when further action, on his part, is required.


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished.

2.  In April 1998, the Board denied the appellant's claim for VA benefits because the evidence failed to establish that he had qualifying military service for VA purposes.

3.  The additional evidence associated with the claims file since the April 1998 denial is, by itself or considered with previous evidence of record, is both new and material and so significant that it must be considered in order to fairly decide the merits of the claim.


CONCLUSIONS OF LAW

1.  The April 1998 Board decision denying basic eligibility for entitlement to VA benefits is final.  38 U.S.C.A. §§ 7103, 7104(a) (West 2002); 38 C.F.R. § 20.1100(a) (2012). 

2.  Since the April 1998 denial, the requirements for reopening the appellant's claim as to basic eligibility for entitlement to VA benefits have been met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (as in effect for claims filed prior to August 29, 2001).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). 

Given the favorable disposition of the request to reopen, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished.

II.  Analysis

In 1998 as now, an application for disability compensation consists of five elements: (1) status as a veteran, (2) existence of a disability, (3) service connection of that disability, (4) degree of disability, and (5) effective date of benefits.  Vargas-Gonzalez v. Principi, 15 Vet. App. 222, 227-8 (2001), citing Barrera v. Gober, 122 F.3d 1030, 1037 (Fed. Cir. 1997). 

VA benefits are available for certain types of Philippine service, under specific circumstances.  See 38 C.F.R. §§ 3.40, 3.41.  The following certifications by the service departments will be accepted as establishing guerrilla service: (i) recognized guerrilla service; (ii) unrecognized guerrilla service under a recognized commissioned officer only if the person was a former member of the United States Armed Forces (including the Philippine Scouts) or the Commonwealth Army.  38 C.F.R. § 3.40(d)(2).

For the purpose of establishing entitlement to benefits, 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 and, (2) the document contains needed information as to length, time, and character of service, and (3) in the opinion of the Department of Veterans Affairs, the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a).  In addition, 38 C.F.R. § 3.203(c) provides in pertinent part that "[w]hen a claimant does not submit evidence of service or the evidence submitted does not meet the requirements of paragraph (a) of this section, the VA shall request verification of service from the service department." 

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).  In addition, service department findings are binding on the VA for purposes of establishing service in the U.S. Armed Forces.  Id.; see also Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). 

Here, at the time of the April 1998 Board decision, the appellant had submitted, along with his original application for benefits, photocopies of certificates and Philippine service documents, which, among other things, noted his service from September 3, 1943 to April 29, 1946 in the Philippines, including service in "H" Company, 2nd Battalion, 31st Infantry Regiment of the Bulacan Military District, as well as that unit's attachment to the U.S. 6th Army.

The Board found that the described documents were not sufficient to demonstrate the requisite service because they were not issued by a United States service department, and did not contain necessary information deemed accurate.  See 38 C.F.R. § 3.203.  In fact, in March 1992, the U.S. Army Reserve Personnel Center had notified the RO 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 August 1995, the U.S. Army Reserve Personnel Center affirmed 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 Board thus concluded that, due to certification by the U.S. Army, the appellant had no service as a member of the Army of the United States, or the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces, the appellant did not meet the basic eligibility requirements for entitlement to VA benefits. 

Unless the Chairman orders reconsideration, or another exception to finality applies, Board decisions are final as of the date rendered.  See 38 U.S.C.A. §§ 7103, 7104(a); 38 C.F.R. § 20.1100(a).  Here, the Board's April 1998 decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 

However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the appellant.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3rd 1356 (Fed. Cir. 1998). 

Here, the appellant sought to reopen his claim in August 2000.  For claims filed prior to August 29, 2001, new and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim.  38 C.F.R. § 3.156(a).

In determining whether new and material evidence has been presented, VA must initially decide whether evidence submitted since the prior final denial is, in fact, new.  As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not "merely cumulative" of other evidence that was then of record.  This analysis is undertaken by comparing newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material. 

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).  Here, the last final denial pertinent to the claim was the April 1998 Board decision.  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). 

Since the Board's April 1998 decision, the appellant has submitted a large amount of additional evidence.  This evidence consists in part of medical records relating to his current disabilities, duplicate copies of records previously submitted, and statements not previously of record, attesting to the appellant's service in the Philippines.  In August 2005, the service department again certified that the appellant had no service as a member of the Army of the United States, or the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.

After the last completed certification request in August 2005, the appellant submitted an affidavit from E.R., dated January 2006, who identified himself as a U.S. Army officer who had organized a guerilla force known as the East Central Luzon Guerilla Area (ECLGA).  This individual asserted that, upon examining the appellant's documentation, the appellant served under a unit which E.R. commanded.

The appellant submitted another affidavit from P.O.D., who reported serving as a member of the Valenzuela Regiment (Bulacan Military Area) under the "Anderson U.S. Army."  This individual attested to having personal knowledge that the appellant served under the command of E.R.  Furthermore, a March 2006 affidavit from M.B.F. asserted her personal knowledge that the appellant served under the command of E.R., as her father had also served in this unit.

In the April 2009 decision (which has been set aside by the Court), the Board determined that the three affidavits discussed above were "new" as they were not previously considered in the last prior final denial of the claim, but that they were not "material" as none of the evidence was capable of substantiating qualifying service under 38 C.F.R. § 3.203(a).

However, in the May 2012 Memorandum Decision, the Court has remanded this case for further development by holding that the provisions of 38 C.F.R. § 3.203(c), as interpreted in Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed Cir. 2008), require VA to forward the newly submitted affidavits and "all procurable data, including lay statements" to the service department for verification.  The Court did explicitly address whether the additional evidence received constitutes both new and material evidence sufficient to reopen the claim, but instead appears to have considered 38 C.F.R. § 3.203(c) as a duty to assist provision independent of the generalized VA duty to assist provisions.  See generally 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).  

However, the Board is of the opinion that the Court's May 2012 Memorandum Decision implies that the affidavits by E.R., P.O.D., and M.B.F.  constitute "material" evidence as contemplated by 38 C.F.R. § 3.156 (as in effect for claims filed prior to August 29, 2001).  In this respect, the Court determined that the affidavits were potentially capable of verifying the appellant's claimed active duty service-which was the basis for the prior denial of the claim.  The Board is bound by the findings contained in the Court's Memorandum Decision-even, as here, an implicit finding.  See e.g., Chisem v. Gober, 10 Vet. App. 526, 527-28 (1997).

For this reason, the Board finds that the additional evidence associated with the claims file since the April 1998 denial is new and, by itself or considered with previous evidence of record, so significant that it must be considered in order to fairly decide the merits of the claim. 

Under these circumstances, the Board concludes that as evidence that is both new and material has been received, the criteria for reopening the claim for basic eligibility for entitlement to VA benefits are met.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.



ORDER

As new and material evidence has been received, the request to reopen the claim for basic eligibility for entitlement to VA benefits is granted.


REMAND

As the Board has reopened the claim for basic eligibility for entitlement to VA benefits, to avoid any prejudice to the Veteran, the RO should adjudicate the claim, on the merits, in the first instance.  The Board also finds that additional development of the claim is warranted. 

In the May 2012 Memorandum Decision, the Court found that VA had a duty to make another attempt to verify the appellant's claimed qualifying service which is based upon "all procurable data, including lay statements."  The Board will request the RO/AMC to provide copies of all potentially relevant documents to the service department for review.  Notably, the paper claims file before the Board consists of two very large claims files.  To assist the RO/AMC, the Board has identified the documents which must be sent to the service department by their content as well as the date received by VA.

Prior to seeking service department verification, to ensure that all due process requirements are met, the RO should give the appellant an opportunity to provide additional information and/or evidence pertinent to the claim on appeal.  The RO's letter to the appellant should explain that he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period).

Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012).

The action identified herein is consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on the merits.

Accordingly, this matter is hereby REMANDED for the following action:

1.  Furnish to the appellant and his attorney a letter requesting that the appellant provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record.  The RO should also request the appellant to submit any other evidence and/or information which is pertinent to verifying his claimed qualifying service.

Clearly explain to the appellant that he has a full one-year period to respond (although VA may decide the claims within the one-year period).

2.  If the appellant responds, obtain all identified outstanding pertinent records, following the procedures set forth in 38 C.F.R. § 3.159 (2012).  All records and responses received should be associated with the claims file.  If any records sought are not obtained, the RO should notify the appellant and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

3.  After providing the appellant and his representative a reasonable opportunity to respond, contact the appropriate service department and make a new request for verification of the appellant's claimed active duty service by providing copies of the following materials: 

* a 1946 Affidavit for Philippine Army (PA) Personnel reporting the appellant's service as a "Civilian guerilla" during World War II (received in February 1989);
* a September 7, 1987, Certification from the General Headquarters of the Armed Forces of the Philippines listing the appellant under service number 228255 Infantry (inactive) with guerilla military service with "H" Co., 2nd Bn, 31st Inf. BMD (F-23) from September 30, 1943 to April 29, 1946, and also noting the appellant was not carried on the Approved Revised Reconstructed Guerilla Roster of 1948 but had been paid arrears (received in February 1989);
* an April 27, 1946, Processing and Identification Slip from the PA 4th Replacement Battalion Headquarters (received in February 1989);
* an April 29, 1946, PA Certificate of Relief from Active Duty Discharge reflecting a civilian guerilla discharge (received in February 1989);
* a March 7, 1947, Official Certification by an Assistant Adjutant General reflecting that the appellant was carried on the approved guerilla roster of the 31st and 32nd Bulacan Military District FCLGA as a private (received in February 1989);
* an April 30, 1946, Certificate from a Commanding Officer reflecting that the appellant was an active member of Bulacan Military District and fully included in the Official Roster of Troops approved by AFPAC (received in February 1989);
* a 1946 Clearance Slip from the PA 4th Replacement Battalion Headquarters (received in December 1991);
* an April 1946, Oath and Certification of Enlistment with examination report (received in December 1991);
* a February 1945, PA Personal Record (received in December 1991);
* an April 29, 1946, oath certification with emergency contact notice information (received in December 1991);
* an April 1946, Affidavit for PA Personnel in handwriting reflecting a civilian guerilla status (received in December 1991);
* an April 1946, Affidavit for PA Personnel in typeset reflecting a civilian guerilla status (received in December 1991);
* a February 1947, Official Certification issued by PA Headquarters at Camp Murphy, Quezon City (received in October 1995);
* a March 1947, Affidavit from a Commanding Officer Lieutenant Colonel of the PA Infantry (received in October 1995);
* a summary of service submitted by the appellant in October 1995;
* a summary of service submitted by the appellant in January 1988;
* a newspaper article entitled Fighting to Become a Citizen (received in January 1988);
* a September 21, 1985, letter from the U.S. Army Reserve Component, Personnel Services Directorate (received in January 1988);
* a summary of service submitted by the appellant on January 22, 1999;
* a copy of the appellant's September 1997 RO hearing transcript with corrections (received in August 1999);
* an April 12, 1983, certification from the Philippine Veterans Affairs Office (received in August 2000);
* a statement by the appellant received in February 2001;
* transcript of appellant's hearing before the Board in July 2002;
* an article entitled Pinoy WW II Vets Without Records Can Get US Citizenship (received in August 2005);
* a September 1994, letter from the appellant to the U.S. Army Finance Center (received in August 2005);
* a Certificate of Eligibility from The American Legion (received in January 2006);
* an affidavit from E.P.R. dated January 2006 (received in March 2006);
* a statement by the appellant dated February 26, 2006 (received in March 2006);
* an affidavit from P.O.D., dated March 2006 (received in March 2006);
* an affidavit from M.B.F., dated March 2006 (received in March 2006);
* an article from Philippine News with handwritten comments (received in December 2010);
* a picture of the appellant in military uniform (received in December 2010); and
* a statement by the appellant (VA Form 9) received in December 2010.

4.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  Stegall v. West, 11 Vet. App. 268 (1998).

5.  After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matter on appeal in light of all pertinent evidence and legal authority.

6.  If the benefit sought on appeal remains denied, the RO must furnish to the appellant and his attorney an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied.  The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).

This REMAND must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).  The RO is reminded that this appeal has been advanced on the Board's docket.



______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs