Citation Nr: 1320105 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 12-32 470 ) 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 presented to reopen a claim of entitlement to nonservice-connected disability pension with special monthly pension (SMP). WITNESSES AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The appellant was in missing status from January 1944 to February 1945, served as a member of the recognized guerillas from February 1945 to July 1945, and served with the Regular Philippine Army from July 1945 to June 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In connection with his appeal, the appellant and his daughter testified at a Board hearing before the undersigned Veterans Law Judge at the RO in February 2013. A transcript of that hearing has been associated with the claims file. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. In an unappealed January 2008 administrative decision, the RO denied entitlement to nonservice-connected pension benefits. 2. The evidence associated with the claims file subsequent to the January 2008 administrative decision is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to nonservice-connected disability pension with SMP. CONCLUSION OF LAW New and material evidence has not been received to reopen a claim of entitlement to nonservice-connected disability pension with SMP. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, 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. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). When providing the notice, it is necessary for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the new and material evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1 (2006). This case is one in which the law is dispositive of the issue. Sabonis v. Brown, 6 Vet. App. 426 (1994). Under such circumstances, the duties to notify and assist are not applicable. Mason v. Principi, 16 Vet. App. 129 (2002). Further, VA has no duty to assist an appellant in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid the appellant in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); Wensch v. Principi, 15 Vet. App. 362 (2001). Nonetheless, the record shows that the appellant was informed of the reason for the prior denial of entitlement to nonservice-connected pension in the January 2008 administrative decision denying the claim. Additionally, the appellant was informed of what the evidence must show to substantiate his claim in the January 2008 administrative decision. Although the appellant was not provided notice with respect to the disability-rating or effective-date elements of his claim, the Board finds that there is no prejudice in proceeding with the issuance of a final decision. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has determined that new and material evidence has not been presented to reopen the claim. Consequently, no disability rating or effective date will be assigned, thus the failure to provide notice with respect to those elements of the claims would be no more than harmless error. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to that rule provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2002). New evidence is 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 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 claim, new and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The appellant originally filed a claim of entitlement to nonservice-connected pension benefits in February 1988. In a May 1988 administrative decision, the appellant was denied entitlement to nonservice-connected pension benefits based on a finding that he was not eligible to receive nonservice-connected pension as he did not have qualifying service. The appellant did not appeal that decision. In June 2004, the Veteran again filed a claim of entitlement to nonservice-connected pension benefits and in a June 2004 administrative decision, the appellant was denied entitlement to such based on a finding that he was not eligible to receive nonservice-connected pension as he did not have qualifying service. The appellant did not appeal that decision. In November 2007, the appellant filed another claim of entitlement to nonservice-connected pension benefits. In a January 2008 administrative decision, the appellant was again denied entitlement to nonservice-connected pension benefits based on a finding that he was not eligible to receive nonservice-connected pension as he did not have qualifying service. The appellant did not appeal that decision. The pertinent evidence of record at the time of the January 2008 administrative decision includes records showing the Veteran to have service as a member of the recognized guerillas and service with the Regular Philippine Army. The pertinent evidence that has been received since the unappealed January 2008 administrative decision includes additional evidence showing that the appellant had service as a member of the recognized guerillas and service with the Regular Philippine Army. The Board finds that the evidence received since the January 2008 administrative decision is cumulative and redundant in nature and that it does not relate to the reason the claim was originally denied. Competent evidence showing that the appellant served in a regular component of the active military, naval, or air service of the United States Armed Forces for a period of 90 days or more, to include at least one day of service during a period of war, has not been added to the record. Accordingly, the Board must conclude that new and material evidence to reopen the claim for entitlement to nonservice-connected pension benefits has not been presented, and the January 2008 administrative decision remains final. As the appellant has not fulfilled the threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the claim must be denied. Annoni v. Brown, 5 Vet. App. 463 (1993). ORDER New and material evidence has not been presented, and reopening of the claim of entitlement to nonservice-connected pension benefits with SMP is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs