Citation Nr: 1315620 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 07-10 155 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to basic eligibility for VA benefits. ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The appellant contends that he had service in the Philippines during World War II sufficient to establish basic eligibility for VA benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 decision by the RO. In an August 2006 statement, the appellant indicated that he was assigning his power of attorney to the Veterans of Foreign Wars (VFW). The Board has reviewed the claims folder and the Virtual VA eFolder and was unable to locate a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in favor of the VFW. In a November 2006 development letter, VA provided a list of recognized national organizations that could assist him with his claim. At this time, the claims folder does not contain appropriate documentation appointing any accredited representative, attorney or agent, and the Board does not recognize any representation at this time. 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 May 2005, the RO determined that the appellant did not have the required military service to be eligible for VA benefits. The appellant did not appeal the decision, and evidence or information relevant to this issue was not received within the one-year appeal period. 2. The evidence associated with the record since the May 2005 decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to basic eligibility for VA benefits. 3. The service department has 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. CONCLUSIONS OF LAW 1. The evidence received subsequent to the May 2005 decision is new and material, and the claim of basic eligibility for VA benefits is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The appellant did not have the requisite service to render him basically eligible for VA benefits. 38 U.S.C.A. §§ 101, 107, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.159, 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As this decision reopens the claim of entitlement to basic eligibility for VA benefits, no further discussion of VCAA compliance of that issue is required at this time. With regard to the reopened issue, the Board finds that the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. Under VCAA, 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)(1); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that in cases where the appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated by VCAA to inform the appellant of the information or evidence necessary to prove the element of veteran status. Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) ("Since veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of VCAA notice concerning proof of veteran status is necessary in most, if not all, cases.") By letter dated in November 2006, VA notified the appellant of the information and evidence needed to substantiate his claim of basic eligibility for VA benefits, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The claim was most recently readjudicated in the October 2009 Supplemental Statement of the Case (SSOC). The Board acknowledges that the November 2006 letter did not contain information regarding the assignment of VA disability ratings and effective dates. Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, in this decision, the Board has determined that basic eligibility for VA benefits has not been established. Thus, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. As discussed, the service department certified on five separate occasions that the appellant did not have the requisite service for the benefit sought. VA is bound by this certification. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 ("The Federal Circuit's decision in Soria recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive and binding on VA."); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In light of the binding certifications, any VCAA notification error is non-prejudicial as the appellant is not entitled to the benefit sought as a matter of law. See Valiao v. Principi, 17 Vet. App. 229 (2003); see also Palor, 21 Vet. App. at 332-33 ("Therefore, in assessing whether the appellant was prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status, the Court can conclude only that because the appellant is currently ineligible for VA benefits as a matter of law based on the [the service department's] refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error."). Under VCAA, VA also has a duty to assist claimants in the development of a claim. This includes assisting the claimant in procuring service medical records and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159. A review of the record indicates that all necessary evidence relative to this claim has been obtained and associated with the claims file. The Board acknowledges that the duty to assist requires that new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review. See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008). As will be discussed, the RO contacted the service department on multiple occasions and provided relevant evidence for review, to include an alternate name and service numbers. There is no indication of personal data substantially different from that already provided to the National Personnel Records Center (NPRC). Since the most recent negative response in October 2009, the appellant has produced no additional information which would warrant another request to the NPRC. For these reasons, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. No reasonable possibility exists that any additional assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board further notes that the Court has held that VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). New and Material Evidence In May 2005, the RO determined that the claimant did not have the required military service to be eligible for VA benefits. The appellant was notified of the decision and of his appellate rights, but he did not appeal in a timely manner. Moreover, there was no evidence or other information relevant to this claim that was submitted within one year of notification of the decision. In August 2006, the appellant requested to reopen his claim. The RO denied the claim in September 2006. The appellant submitted additional evidence for consideration within the one-year appeal period and in October 2006, the RO again denied the claim to reopen. The appellant has perfected an appeal of the issue as noted. In the October 2009 SSOC, the RO reopened the claim, but found that the appellant had not met the threshold requirement for eligibility to receive VA benefits. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 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. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO reopened a claim, it is a jurisdictional requirement that the Board reach its own determination as to whether new and material evidence has been presented. The Board is required to consider the issue of finality prior to any consideration on the merits. 38 U.S.C.A. §§ 5108, 7104(b); see Barnett v. Brown, 8 Vet. App. 1 (1995). The evidence at the time of the May 2005 decision included the original VA Form 21-526, Application for Compensation and/or Pension, and statement from the claimant; a letter from the Philippine Veterans Affairs Office (PVAO) dated in August 1974; a Joint Affidavit dated in August 1961; Special Order Number 287 from the Commonwealth of the Philippines Army Headquarters dated in October 1945; Certification of Military Service for the Office of the Adjutant General Armed Forces of the Philippines dated in May 1977 (AGNR2); a Processing and Identification Slip from the Headquarters, 3rd Replacement Battalion, Philippine Army, United States Army Forces in the Far East (USAFFE); and a VA Form 21-3101, Request for Information, and response. The appellant argued that the various documents submitted established basic eligibility for VA benefits. In his original claim received in January 2005, the appellant reported that he served in the United States Army in the Philippines from 1938 to November 1945. He also reported that he was a prisoner of war (POW) from April to September 1941. In April 2005, NPRC stated that the subject had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. Additional evidence has been added to the claims folder since the May 2005 decision. This includes statements from the appellant and additional documentation, to include an Affidavit for Philippine Army Personnel, and W.D., A.G.O. Form No. 24, Service Record covering the period from December 1941 to November 1945. In his August 2006 application for compensation, the appellant reported having served from December 1941 to November 1945 and being a POW from April to July 1942. The Board acknowledges that negative certifications were received from the service department since the May 2005 decision. Notwithstanding, the Board finds that the additional information and documentation submitted by the claimant constitutes new and material evidence, as it relates to whether the appellant had the necessary service to qualify for "Veteran" status under applicable VA regulations. Moreover, such evidence contributes to a more complete picture of the circumstances surrounding his period of service, and as such it is not merely redundant of the record at the time of the May 2005 denial. Finally, this evidence raises a reasonable possibility of substantiating the appellant's claim of establishment of basic eligibility to VA benefits. As such, the requirements under 38 C.F.R. § 3.156(a) have been met and the claim is reopened. In reaching this determination, the benefit of the doubt doctrine has been appropriately applied. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Basic Eligibility for VA Benefits Initially, the Board observes that the appellant is not prejudiced by the Board's consideration of this claim on the merits. See Bernard v. Brown, 4 Vet. App. 384 (1993). As discussed, the claim was reopened and considered in the October 2009 SSOC. Background In March 2005, the RO contacted the service department and requested verification of the appellant's reported military service. The appellant's AGNR2 was enclosed for review. In April 2005, the NPRC responded 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 2009, the RO contacted the service department and requested verification of the reported military service, to include consideration based on a newly provided service number. The appellant's processing affidavit (Affidavit for Philippine Army Personnel) and an extract of Special Order Number 287 were submitted for review. In February 2009, the NPRC responded 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 March 2009, the RO again requested verification of service. Response to this request dated on April 23, 2009 indicates that no change was warranted in the prior negative certification. In the interim, on April 8, 2009, the RO sent another request for verification, which included three service numbers and an additional name under which the appellant may have served. Service documents were enclosed to facilitate in the search. In June 2009, the NPRC responded that the subject had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. Another request for verification was sent in July 2009. NPRC responded in October 2009, again stating that the subject had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. Applicable Law The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). 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, shall not be deemed to have been active military, naval, or air service for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the Armed Forces, except for specified benefits which do not include death pension benefits authorized by chapter 15, title 38, United States Code. 38 U.S.C.A. § 107(a); 38 C.F.R. §§ 3.40, 3.41. For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial benefits, 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; (2) the document contains needed information as to length, time, and character of service; and (3) in the opinion of the VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more; or (2) discharge for disability incurred in the line of duty; or (3) 90 days creditable service based on records from the service department such as hospitalization for ninety days for a line of duty disability. 38 C.F.R. § 3.203(b). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, the VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). The Court has held that the findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has reached the same conclusion. See e.g. Soria v. Brown, 118 Fed. 3rd 747, 749 (Fed. Cir. 1997) (noting that "[b]ecause the United States Department of the Army refused to certify [the claimant's] alleged service in the Philippine Army, the VA properly refused to consider his claim for veterans' benefits based on that service."). Analysis As noted, the NPRC has reviewed pertinent documentation, considered alternate service numbers and name spellings, and certified on multiple occasions that the appellant had no service as a member of the Philippine Commonwealth Army, including as a recognized guerrillas, in the service of the United States Armed Forces. VA is bound by that certification. The Board has carefully considered the documentation submitted by the appellant, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. As such, those documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA. To the extent that the appellant is arguing that NPRC's negative certification is erroneous, or that the service department has incomplete or inaccurate information as to his service, the Board encourages the appellant to pursue the correction of his service information. See e.g. Cahall v. Brown, 7 Vet. App. 232, 237 (1994) (noting that if the appellant disagrees with the information contained in service department records, his remedy, if any, must be pursued with the Army Board for the Correction of Military Records). The Board acknowledges the appellant's arguments and his sincere belief that he had service sufficient to establish basic eligibility for VA benefits. However, the claimed service has not been verified by the appropriate service department. Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER As new and material evidence has received to reopen the claim of basic eligibility for VA benefits, the appeal to this extent is allowed. The claim for basic eligibility for VA benefits is denied. ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs