Citation Nr: 1318453	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  12-31 964	)	DATE
	)
	)

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


THE ISSUES

1.  Whether new and material evidence has been received to establish basic eligibility to VA benefits.

2.  Whether basic eligibility to VA benefits exists.


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel



INTRODUCTION

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 decision by a VA Regional Office (RO) in Manila, the Republic of the Philippines.  

In February 2013, the appellant failed to appear for the hearing he had requested before a Veterans' Law Judge traveling to the RO.  Therefore, this hearing request is considered withdrawn.  

In December 2012, the RO received for the fourth time a reply from the National Personnel Records Center (NPRC) regarding the claimant not having any qualified service.  The Board finds this fourth NPRC reply is duplicative of the three earlier replies received by the RO from the NPRC.  Therefore, the Board finds that a remand for a supplemental statement of the case is not required.  See 38 C.F.R. § 19.31 (2012)

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.  A January 1997 decision denied the appellant's claim to establish basic eligibility for VA benefits.  This decision was not appealed and no new and material evidence was submitted within the appeal period.

2.  Evidence received since the time of the final January 1997 decision was not previously of record and relates to an unestablished fact necessary to substantiate the claim for basic eligibility for VA benefits.

3.  The NPRC has certified that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas in the service of the Armed Forces of the United States.

CONCLUSIONS OF LAW

1.  The January 1997 decision denying basic eligibility to VA benefits is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).

2.  New and material evidence has been submitted to reopen the claim for basic eligibility for VA benefits and therefore the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).

3.  Basic eligibility for VA benefits has not been established.  38 U.S.C.A. §§ 101, 107, 501 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.3, 3.40, 3.41, 3.203 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

As to the claim to reopen, because that aspect of the claim is being granted, the Board finds that there is no need to address compliance with the VCAA on this point.

As to the merits of the claim, the United States Court of Appeals for Veterans Claims (Court) has held that when the law as mandated by statute, and not the evidence, is dispositive of the claim, the above provisions are not applicable.  See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002).   

For reasons that will be explained in more detail below, the Board finds that there is no legal entitlement to the benefits claimed.  Thus, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim.  Accordingly, the Board finds that no further discussion of the VCAA is required because any deficiencies of notice or assistance are moot.  See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim).  In any event, VCAA notice was provided in an April 2011 letter.

The Claim to Reopen

The appellant claims, in substance, that he served with United States forces in the Philippines during World War II and he is therefore entitled to receive VA benefits.

The RO initially denied the appellant's claim for basic eligibility for VA benefits in a January 1997 decision.  The appellant did not appeal this decision.  Moreover, the record does not show that he submitted relevant evidence within the one-year appeal period.  38 C.F.R. § 3.156(b) (2012).  Therefore, the Board finds that the January 1997 decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).

As to reopening the prior final denial of the claim in the January 1997 decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed.  38 U.S.C.A. § 5108.  New evidence means existing evidence not previously submitted to agency decision makers.  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 claims.  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 claims sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  The Board is required to give consideration to all of the evidence received since the earlier denial of the claim in the January 1997 decision in light of the totality of the record.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  

In this regard, the United States will pay compensation to any veteran disabled by disease or injury incurred in or aggravated by active military service, who was discharged or released under conditions other than dishonorable from the period of service in which the disease or injury was incurred, provided the disability is not the result of the person's own willful misconduct. 38 U.S.C.A. §§ 1110, 1131 (West 2002).  The law also authorizes payment of a pension to a veteran who has the requisite service. 38 U.S.C.A. § 1521 (West 2002).  

For purposes of any of the above determinations, the term "veteran" means a person who served in the active United States military, naval, or air service and who was discharged or released under conditions other than dishonorable.  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  

Service as a Philippine Scout in the Regular Army inducted between October 6, 1945, and June 30, 1947, inclusive, and 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, U.S. 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.  38 C.F.R. § 3.40(b), (c), and (d).  (Emphasis added.)  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 benefits.  Id.  Active service will be the period certified by the service department.  38 C.F.R. § 3.41.

For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate United States service department under the following conditions: (1) the evidence is a document issued by the United States service department; (2) the document contains the 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.  38 C.F.R. § 3.203(a).

With the above criteria in mind, the Board notes that the January 1997 decision denied basic eligibility for VA benefits because in August 1996 the NPRC notified it that the claimant did not have any qualifying service.

However, since the January 1997 decision, the appellant filed with the RO several documents in support of his having qualifying service.  In this regard, he filed with the RO a document entitled "Army of the United States" dated in December 1945 that reported that he served as a Sergeant, Head Quarters C Company, 1st Battalion, 121st Infantry with the Army of the United States from July 1942 to December 1945.  He also filed a document entitled "United States of America Certification of Military Service" dated in January 1946 which reported that he served with the Philippine Scouts as a Sergeant from July 1942 to December 1945 and was honorably discharged.  Likewise, the appellant filed with the RO a document entitled "Certificate in Lieu of Lost or Destroyed Discharge" dated in January 1946 which reported that he was discharged as a Sergeant from the Army of the United States. 

The Board finds, after presuming the credibility of the documents for the sole purpose of new and material evidence analysis (see Justus, supra), that the documents are both new and material evidence as defined by regulation.  In this regard, these documents provided objective evidence in support of the appellant's claim that he had the required service to qualify for VA benefits that was lacking at the time of the earlier denial of his claim.  See 38 C.F.R. §§ 3.40, 3.41, 3.203; Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening").  

The claim to establish basic eligibility for VA benefits is therefore reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  However, this does not end the inquiry.

The Merits of the Claim

As noted above, the United States will pay compensation to any veteran disabled by disease or injury incurred in or aggravated by active military service, who was discharged or released under conditions other than dishonorable from the period of service in which the disease or injury was incurred, provided the disability is not the result of the person's own willful misconduct. 38 U.S.C.A. §§ 1110, 1131.  The law also authorizes payment of a pension to a veteran who has the requisite service. 38 U.S.C.A. § 1521.  

However, where service department certification is required, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding upon VA.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  Thus, if the United States service department declines to verify the claimed service, the applicant's only recourse lies within the relevant service department, not VA.  Soria v. Brown, 118 F. 3d at 749.

The appellant asserts he has qualifying military service so as to meets the above criteria for entitlement to VA benefits.  

In support of his claim, the claimant provided VA with the December 1945 document entitled "Army of the United States" as well as the January 1946 documents entitled "United States of America Certification of Military Service" and "Certificate in Lieu of Lost or Destroyed Discharge" discussed above.  The claimant also provided the RO with a December 1945 document issued from the USAFFE entitled "Honorable Discharge," that reported that the claimant was discharged as a 1st Lt from the Luzon Guerrilla Army Forces.  The appellant also provided the RO with a letter dated in June 1945 from Headquarters USAFFE Luzon Guerrilla Army.  Lastly, the appellant provided the RO with a December 1968 document entitled "Officer's and Enlisted Men's Record" that reported that the claimant served as a 1st Lt under the name "Tirocio Basilam" with a guerrilla unit attached to 121st Infantry Regiment.

The claimant also filed with the RO three affidavits, one dated in January 1991 and two dated in December 1999, as well as two sworn statements dated in January 2012 from men who claimed to have served with the appellant with forces in the Philippines during World War II and/or knew he served with these forces.

The claimant also filed various statements in support of his claim in which he argued that he had qualifying service, as well as photographs of various places he claimed to serve and of people he claimed to have served with in the Philippines during World War II.

The RO submitted the claimant's pertinent information to the NPRC who certified in June 2011, July 2011, and again in September 2012 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.  As noted in the Introduction, the same information was provided in December 2012 from NPRC.

Moreover, the Board finds that the documentation provided by the claimant fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, even if it was consistent as to the nature of his service, as they are not official documents of the appropriate United States service department despite containing headings such as "Army of the United States" and "United States of America Certification of Military Service."  The Board finds the statements from the NPRC more probative as to whether the claimant served with the United States armed forces, than the documents submitted by the appellant.  Likewise, the Board finds the writings, photographs and lay statements he provided do not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service because they are also not official documents of the appropriate United States service department.  As such, they may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits. 

Because the claimant has no qualifying service, basic eligibility for VA benefits has not been established, and the claim must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit).  


ORDER

New and material evidence having been submitted, the appellant's claim to establish basic eligibility for VA benefits is reopened, and to that extent only, the appeal is granted.

The appellant's claim to establish basic eligibility for VA benefits is denied.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs