Citation Nr: 1320408 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 10-36 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for legal entitlement to Department of Veterans Affairs (VA) disability benefits. 2. Legal entitlement to VA disability benefits. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION 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). The record reflects that the appellant had military service from August 1940 to January 1946, but no qualifying service with the United States Armed Forces. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 decision of the Department of Veterans Affairs regional office (VARO) in Manila, Republic of the Philippines, that determined that the appellant did not have qualifying service to be eligible for VA disability benefits. The March 2013 Supplemental Statement of the Case found that new and material evidence had been received and denied the claim on a de novo basis. The Board notes, however, that even if the RO determined that new and material evidence was presented to reopen the claim for legal entitlement to VA disability benefits, such is not binding on the Board, which must first decide whether evidence has been received that is both new and material to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. FINDINGS OF FACT 1. The RO denied entitlement to VA disability benefits in a December 1982 letter. 2. The additional evidence received subsequent to the December 1982 denial is not cumulative or redundant of evidence previously of record and by itself or in connection with the evidence previously assembled raises a reasonable possibility of substantiating the claim. 3. The National Personnel Records Center (NPRC) has indicated 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 December 1982 decision that denied legal entitlement to VA disability benefits is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. Evidence received since December 1982 is new and material, and the appellant's application to reopen a claim for legal entitlement to VA disability benefits is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The appellant does not have recognized active military service for the purposes of obtaining VA disability benefits. 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New And Material Evidence Claim The appellant seeks to reopen a claim for legal entitlement to VA benefits. A claim for VA benefits was denied by VA letter in December 1982 because the appellant did not have recognized military service with the Armed Forces of the United States. The appellant attempted to reopen his claim in October 2008, which was denied by letter in January 2009, and the appellant timely appealed. In general, unappealed rating decisions are final. See 38 U.S.C.A. § 7104. A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 38 U.S.C.A. § 5108, VA must reopen a finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. "If new and material evidence is presented or secured with respect to a claim that has been disallowed, [VA] shall reopen the claim and review the former disposition of the claim." See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); see also Knightly v. Brown, 6 Vet. App. 200 (1994). "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 unsubstantiated 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In order for the appellant's claim to be reopened, new and material evidence must be submitted. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. There must be new and material evidence as to any aspect of the Veteran's claim that was lacking at the time of the last final denial in order to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). The evidence on file at the time of the December 1982 denial consisted of a September 1945 Affidavit for Philippine Army Personnel, a Certificate of Honorable Discharge from the Philippine Commonwealth Army dated in January 1946, and a November 1982 response to a request for information from the United States Army Reserve Components Personnel and Administration Center. The Certificate of Honorable Discharge shows service in the Philippine Commonwealth Army from August 1940 to January 1946. According to the November 1982 United States Army Reserve Components Personnel and Administration Center, 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 evidence received after December 1982 includes the appellant's September 2010 substantive appeal in which he contends that he was a prisoner of war (POW) of the Japanese Army under a different name. The Board has reviewed the evidence received into the record since December 1982 and finds that new and material evidence has been submitted sufficient to reopen the claim. The above noted evidence received since December 1982 indicates the possibility that the appellant may have been a POW of the Japanese Army during World War II. This evidence is new because it had not previously been received by VA, and it is material because it raises a reasonable possibility of showing legal entitlement to VA benefits. Therefore, new and material evidence has been received and the claim for legal entitlement to VA benefits is reopened. Claim For Legal Entitlement To VA Benefits The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duties to notify and assist claimants in developing claims. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2003). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VA's duties to assist and notify have been considered in this case. However, as it is the law, and not the facts, that is dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not for application in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The enactment of the VCAA does not affect matters on appeal from the Board on questions limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certification of service is binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. 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 U.S. service department under the following conditions: (1) the evidence is a document issued by the United States service department; (2) the document contains 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). In support of his claim for entitlement, the appellant has submitted an August 1945 Affidavit from R.B.; a September 1945 statement from J.C., Jr.; a September 1945 Affidavit for Philippine Army Personnel; a December 1945 Affidavit for Philippine Army Personnel; a Certificate of Honorable Discharge from the Philippine Commonwealth Army, dated in January 1946; A January 1946 Restricted List issued by the 2ND Replacement Battalion of the Philippine Army; a September 1947 Affidavit from L.A.C.; a November 1982 response to a request for information from the United States Army Reserve Components Personnel and Administration Center; January 1983 Certification from the Philippine Ministry of National Defense; a 1987 membership card from The American Legion; February 1989 Certification from the Armed Forces of the Philippines; an October 1997 Joint Affidavit from C.C. and P.V.; copies of documents added to the file in August and September 2010, which relate to the Imperial Japanese Forces in the Philippines during World War II and are signed by Pedro Domingo; responses to requests for information from the National Personnel Records Center (NPRC) dated in March 2010, September 2010, January 2013, and March 2013; and statements from the appellant contending that he had the required service for VA benefits. The Board has carefully reviewed the appellant's evidentiary submissions. However, the Board finds that these documents fail to satisfy the requirements of 38 C.F.R. § 3.203 as essential proof of service, as these documents are not official documents of the appropriate United States Service Department. As such, these documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits. In fact, the NPRC has certified in March 2010, September 2010, January 2013, and March 2013 that the appellant, including under an alternate name, 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 is not free to ignore the certification of the NPRC. This certification is binding on VA such that VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The proper course for the appellant is to pursue his disagreement with his Service Department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). VA is bound to follow the certifications by the Service Departments with jurisdiction of United States military records. Based upon the record in this case, 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 appellant may not, therefore, be considered a Veteran for the purpose of establishing entitlement to VA benefits. Accordingly, the claim is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) ORDER New and material evidence having been received, the appeal to reopen a claim for legal entitlement to VA disability benefits is granted, to this extent only. Legal entitlement to VA benefits is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs