Citation Nr: 1322524 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 08-38 164 ) 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 received to reopen a claim of recognition as the Veteran's surviving spouse for the purpose of restoring entitlement to death pension benefits. ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had recognized service from February 1917 to June 1920. The appellant is claiming benefits as the surviving spouse of the Veteran. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. Entitlement to recognition as a surviving spouse for pension benefits was denied in a decision issued in January 2000. The appellant did not appeal the January 2000 decision or submit any pertinent evidence within the appeal period. 2. The evidence added to the record subsequent to the January 2000 decision is cumulative of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of recognition as the Veteran's surviving spouse for the purpose of restoring entitlement to death pension benefits. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Claim to Reopen The appellant's recognition as the Veteran's surviving spouse for death pension benefits was terminated in a decision issued in May 1999 based on evidence that the appellant had been living with M.K. in a husband and wife relationship since March 1997. The appellant submitted additional evidence, and the decision to terminate recognition of the appellant as a surviving spouse and entitlement to death pension benefits, was upheld in a decision issued in January 2000. The appellant was informed of the right to appeal. The appellant did not appeal the January 2000 decision or submit any pertinent evidence within the appeal period. In November 2005, the appellant filed a claim of entitlement to recognition as a surviving spouse for death pension purposes. Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has 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." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Duran v. Brown,7 Vet.App. 216, 220 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also King v. Brown, 5 Vet. App. 19, 21 (1993). Recognition as the Veteran's surviving spouse for death pension benefits was terminated because regardless of whether the appellant and M.K. were married under tribal customs, she lived with M.K.; represented herself to the public as the spouse of M.K.; and continued this marital-type relationship until after November 1, 1990 in violation of 38 C.F.R. §§ 3.50(b)(2) and 3.55(a)(3). Evidence previously considered included the results of field investigations in 1994, 1998, and 1999; VA Forms 21-8913 and statements from the appellant denying remarriage; statements from H.N., the Veteran's son; certifications and affidavits that the appellant had not or was not married to M.K.; a certification that the appellant had married M.K.in a tribal marriage ceremony; and an October 1998 certification that M.K. and the appellant had been separated in a tribal settlement in March 1994. Evidence added to the record since the January 2000 decision includes statements from the appellant that she was not married to M.K.; statements from H.N. that he had learned that the appellant had not been married to M.K.; a September 1998 certification by S.O. that the appellant had not undergone any marriage after the death of the Veteran; and an October 2008 certification by the National Commission on Indigenous Peoples that there was no record that the appellant was married to anyone other than the Veteran. The appellant also submitted an October 1998 certification by S.O. that the appellant and M.K. had been separated in a tribal settlement in March 1994. Although this evidence is generally new, it is not material because it could not reasonably substantiate the claim were the claim to be reopened. Initially, the Board notes that the appellant's statements are not truly "new" because they are cumulative of evidence previously considered. The appellant's histories that she was only ever married to the Veteran were previously considered. The appellant's statements provide no information which is new and relevant to this matter. As such, the Board finds it is not "new." The October 1998 certification is also not "new" because it is duplicative of previously considered evidence, which included a copy of the October 1998 certification. Statements from H.N. indicating that he has learned that the appellant was not married to M.K. are "new" in that they were not previously seen. H.N. has explained that this belief is based on information he gained from others, however; it is not based on firsthand knowledge. Thus, the Board finds the statements are not competent, and thus not probative evidence, of the appellant's previous marital status, and the evidence is not material. The September 1998 certification by S.O. that the appellant had not undergone any marriage after the death of the Veteran is also not material. Although the record suggests S.O. was competent to report on the marital status of the appellant, the Board finds the September 1998 certification is inherently incredible because it is directly contradicted by the October 1998 certification by S.O. that the appellant and M.K. had been married but separated in March 1994. Furthermore, even assuming the credibility of the certification, the Board finds the certification is not material. Although S.O. asserts that the appellant never "married" anyone other than the Veteran, S.O. does not address whether the appellant ever held herself out as married to anyone other than the Veteran. The previous decisions determined that, regardless of whether the appellant married M.K. under tribal custom, she had an implied marriage with him. The certification from S.O. does not provide any information to discount this finding. Thus, the September 1998 certification is not a basis for reopening the claim. Finally, the October 2008 certification by the National Commission on Indigenous Peoples is not material. The Board acknowledges that the certification indicates that there is no formal record of marriage between the appellant and M.K. The certification does address whether the appellant ever held herself out as married to anyone other than the Veteran, however. As noted above, the previous decisions determined that, regardless of whether the appellant married M.K. under tribal custom, she had an implied marriage with him. This certification does not provide any information to discount this finding. Thus, it is not a basis for reopening the claim. In sum, the evidence submitted since the January 2000 decision does not serve to indicate that the appellant is a surviving spouse. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, the Board finds that new and material evidence has not been submitted, and the application to reopen is denied. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim to reopen a previously and finally denied claim, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. To satisfy this requirement, VA must look at the bases for the denial in the prior decision and provide a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). Substantially compliant notice was sent in March 2011, and the claim was readjudicated in a February 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. The Board acknowledges that the March 2011 letter did not specify why the appellant was no longer recognized as a "surviving spouse." The appellant was so informed in the July 2008 decision and October 2008 statement of the case, however, and the appellant has not alleged prejudice by any failure of VA in its duties to notify and assist. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Moreover, to the extent that any notice errors were made, any such violations could be no more than harmless error, as the appellant has submitted evidence in support of the claim to reopen which pertains to the reason for the previous denial, namely whether she was married to someone other than the Veteran. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). As to VA's duty to assist, VA assisted the appellant in obtaining evidence and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the claims file, and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements, and the appellant is not prejudiced by a decision on the claim at this time. ORDER New and material evidence having not been received, the application to reopen a claim of entitlement to recognition as the surviving spouse of the Veteran for death pension benefits is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs