Citation Nr: 1318373 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 06-32 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been submitted to reopen a claim for basic eligibility for Department of Veterans' Affairs death benefits. WITNESSES AT HEARINGS ON APPEAL Appellant, son, daughter, and son-in-law ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which determined that new and material evidence had not been submitted to reopen a previously denied claim for basic eligibility for Department of Veterans' Affairs death benefits. The appellant seeks surviving spouse benefits based on the claimed service of an individual who reportedly had active service during World War II. The Board denied the appellant's claim in May 2008. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims. VA agreed that the Board's May 2008 decision was not in conformance with a decision issued by the United Stated Court of Appeals for the Federal Circuit issued in September 2008, after the date of the Board's decision in this case, and requested that the appeal be remanded. In a June 2010 Memorandum Decision, the Court vacated the Board's May 2008 decision, and remanded the appeal to the Board. The matter was remanded by the Board in conformance with the Court's June 2010 memorandum decision. The case was again remanded by the Board so that the appellant could be afforded the opportunity for a travel board hearing before a member of the Board. In January 2013, a travel board hearing was held before the undersigned in Manila, Republic of the Philippines. A transcript of the hearing is available for review. 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. Basic eligibility for VA death pension was denied by the RO in a June 2003 determination on the basis that the National Personnel Records Center (NPRC) verified that the decedent had not had service as a member of the Philippine Commonwealth Army, including the recognized guerrillas in the service of the United States Armed Forces. The appellant was notified of that action and the appellate rights, but did not file a timely appeal. 2. Since the June 2003 decision denying basic eligibility for VA death pension, the additional evidence is cumulative and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The additional evidence submitted subsequent to the June 2003 decision of the RO, which denied Basic eligibility for VA death pension, is not new and material and the claim for VA death pension is not reopened, and the June 2003 RO decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim to reopen a previously finally denied claim, VA must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. Kent v. Nicholson, 20 Vet. App. 1 (2006). When the law and not the evidence is dispositive of the claim, and where there is no reasonable possibility that the assistance would substantiate the claim, the duty to notify is not applicable. Mason v. Principi, 16 Vet. App. 129 (2002) (duty to notify not applicable to a claim for non-service-connected pension when the claimant did not serve on active duty during a period of war); Smith v. Gober, 14 Vet. App. 227 (2000). As the law is dispositive in this claim, the duty to notify is not applicable. However, the appellant was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of her claim. September and November 2007 letters provided notice for new and material evidence claims, explained the evidence VA was responsible for providing and the evidence the claimant was responsible for providing, and informed the appellant of disability rating and effective date criteria. The appellant has had ample opportunity to respond or supplement the record. The RO also provided required assistance to develop the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).. The appellant has been kept informed of the RO's actions in this case by a statement of the case, and been informed of the evidence considered, the pertinent laws and regulations and a rationale for the decision reached in denying the claim. The appellant has not made VA aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced her in the adjudication of her appeal. Therefore, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the appeal. Veteran means a person who served in the active military, naval or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2012). Veteran of any war means any veteran who served in the active service during a period of war. 38 C.F.R. § 3.1(e) (2012). Service as a Philippine Scout is included for pension, compensation, dependency and indemnity compensation (DIC) and burial allowances, except for those inducted between October 6, 1945, and June 30, 1947, inclusive, which are included for compensation benefits, but not for pension benefits. Service in the Commonwealth Army of the Philippines from and after the dates and hours when called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, United States Army, pursuant to the Military Order of the President of the United States dated July 26, 1941, is included for compensation benefits, but not for pension benefits. Service department certified recognized guerrilla service, and 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, prior to July 1, 1946) is included for compensation benefits, but not for pension or burial benefits. 38 U.S.C.A. § 107 (West 2002); 38 C.F.R. § 3.40(c)-(d) (2012). Active service will be the period certified by the service department. 38 C.F.R. § 3.9(a), (d) (2012). When an appellant does not submit evidence of service or the evidence submitted does not meet the requirements of this section, VA must request the verification of service from the appropriate service department. 38 C.F.R. § 3.203 (2012). With regard to Philippine service, certifications by the service department will be accepted as establishing periods of recognized service as a Philippine scout, a member of the Philippine Commonwealth Army serving with the Armed Forces of the United States, or as a guerrilla. 38 C.F.R. §§3.40, 3.41 (2012). A service department determination as to an individual's service is binding on VA. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993). In a June 2003 decision, the RO denied entitlement to VA death pension benefits on the basis that the appellant's spouse had not had service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The appellant did not appeal that determination. Further, additional evidence was not received within one year of that decision. Therefore, the RO's June 2003 decision is final. In such cases, it must first be determined whether or not new and material evidence has been received such that the claim may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); Manio v. Derwinski, 1 Vet. App. 140 (1991). 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) (2012). To reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. In determining whether the low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence submitted to reopen a claim is presumed credible for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510 (1992). Evidence of record at the time of the June 2003 decision of the RO that denied the appellant eligibility for VA death pension included documents related to the service of her husband in the Republic of the Philippines. The RO submitted those documents to the National Personal Records Center (NPRC) to obtain verification of her husband's service. In a May 2003 response NPRC reported that there was no change in prior reports that had been previously furnished to VA. The most recent of those, dated in September 1979 was that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas in the service of the United States Armed Forces. Based upon those certifications of a no qualifying service, the RO denied the claim of basic eligibility for death pension. Evidence received since the June 2003 decision includes affidavits from several men, dated in 1946, who assert that they were members of the appellant's spouse's regiment and personally knew the appellant's spouse during service. In addition, the appellant has submitted a PA AGO Form 23, Affidavit for Philippine Army Personnel, executed by the appellant's spouse in March 1946, that asserts that he was inducted into the USAFFE in November 1941 and served with the 63rd Infantry Regiment as a private first class until that unit was disbanded in May 1942. The appellant's spouse went on to state that he served as a guerilla from December 1942 until approximately April 1945. In addition, travel board hearings were held before Members of the Board in January 2008 (before a Judge who is not longer with the Board) and before the undersigned in January 2013. On those occasions, the appellant and her translator asserted that they had no additional documentation showing that her husband had performed active service during World War II. The additional documents received from the appellant were furnished to NPRC in an attempt to verify the service of the appellant's spouse. In an April 2010 response, NPRC found that there was no evidence of service as a member of the Philippine commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. In September 2011, NPRC responded that there was no change warranted in the prior negative service certification. Since the prior final decision, evidence has been added to the claims file. That evidence was submitted to NPRC in an attempt to verify whether the appellant's spouse qualified as a Veteran. The NPRC responded that there was insufficient evidence to support such a finding. The NPRC found that the decedent had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. The service department's determination of service that is binding on the Board. Duro v. Derwinski, 2 Vet. App. 530 (1992). Therefore, the Board concludes new and material evidence has not been submitted such that the appellant does not meet the criteria for entitlement to VA death pension benefits. While new evidence was received, that evidence was not United States service department records. Therefore, the new evidence was referred to NPRC, who found that the decedent did not have qualifying service. Therefore, the Board finds that the evidence is not material because the new evidence does not create a reasonable possibility of substantiating the claim. The law is dispositive of the issue; and the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER New and material evidence having not been received, the application to reopen the claim of basic eligibility for VA death pension is denied. ____________________________________________ Harvey Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs