Citation Nr: 1328337 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 12-17 960 ) 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 in order to reopen a claim of entitlement to basic eligibility for VA non-service-connected pension benefits. ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The appellant served in the Philippine Scouts from June 1946 to March 1949. He has also reported that he served with the United States Armed Forces of the Far East (USAFFE) from 1941 to 1945. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the appellant's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In August 2013, the Vice Chairman of the Board granted a motion to advance this appeal on the Board's docket on her own motion, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. In a final June 2008 decision, the Board denied the appellant's claim for basic eligibility for VA non-service- connected pension benefits. 2. In a final April 2009 rating decision, the RO denied the appellant's petition to reopen his claim for basic eligibility for VA non-service-connected pension benefits. 3. Additional evidence associated with the claims file since the RO's April 2009 decision is cumulative or redundant of evidence previously of record and/or does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2009 RO decision that denied the appellant's claim for basic eligibility for VA non-service-connected pension benefits is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009) [(2012)]. 2. New and material evidence has not been received to reopen the claim for basic eligibility for VA non-service- connected pension benefits. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant maintains that his service should be considered "active military service" for purposes of establishing basic eligibility for VA non-service-connected pension benefits. He claims that his service from June 1946 to March 1949-to particularly include his service in Guam- was with a regular component of the U.S. Army. He also alleges that he had service with the USAFFE from 1941 to 1945. I. Preliminary Considerations A. Additional Evidence The RO furnished the appellant a statement of the case (SOC) relative to the matter here on appeal in June 2012. Thereafter, evidentiary documents (specifically, an Honorable Discharge certificate and March 1949 letter from Headquarters, Philippine Command) were added to the claims file in connection with the submission of a VA Form 9 (Appeal to Board of Veterans' Appeals) in July 2012, and a motion for reconsideration that was dated in January 2013 and received at the Board in March 2013. The Board has reviewed the documents and finds that they are duplicative of evidence already of record and considered in the June 2012 SOC. Accordingly, there is no need to return the case to the RO for further consideration or, alternatively, to solicit a waiver of RO review from the appellant. See 38 C.F.R. §§ 19.31, 20.1304(c) (2012). Furthermore, the motion for reconsideration was denied by a June 2013 letter. B. The Veterans Claims Assistance Act of 2000 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013)). The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (now codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA ask the claimant to provide any pertinent evidence in his possession). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, in the context of a claim to reopen, VA is required to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying claim. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Ordinarily, notice with respect to each of these elements must be provided to the claimant prior to the initial unfavorable decision by the agency of original jurisdiction. Pelegrini, supra. However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). In the present case, the RO did not provide any VCAA notice to the appellant with respect to his claim to reopen. Under the circumstances of this case, however, that error was harmless. As discussed in further detail below, neither the appellant's documented Philippine Scouts service nor his claimed service with the USAFFE is the type of service that can make him eligible VA for non-service-connected pension benefits. In Palor v. Nicholson, 21 Vet. App. 202, 209-210 (2007), the Court found, in the case of a claimant who was not found to have service that would qualify him for veteran status, that VA's failure to inform him of the methods for proving veteran status did not prejudice the claimant. The appellant in this case, as in Palor, is ineligible for VA non-service-connected pension benefits as a matter of law. As such, VA's failure to provide VCAA notice with respect to his petition to reopen cannot affect the outcome of the claim, and no corrective action is required. With respect to the duty to assist, the record reflects that, based on information he provided in association with his prior claims for benefits, the RO sought service department verification of the appellant's service. Based on the response received, and other documents of record issued by the service department, the RO determined that the appellant did not have qualifying service, and that he was ineligible for VA non-service-connected pension benefits as a matter of law. There is no indication that information submitted by VA to the service department for the purposes of certifying his service was erroneous or incomplete. See, e.g., Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008). No further development action is required. II. Analysis In order to be eligible for VA non-service-connected pension benefits under 38 U.S.C.A. §§ 1513 or 1521, a person must have served in the active military, naval, or air service during a period of war. 38 U.S.C.A. §§ 1513(a), 1521(j) (West 2002). By statute, service in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (Pub. L. No. 190) shall not be deemed to have been active military, naval, or air service for purposes of eligibility for some VA benefits, including non-service- connected pension. 38 U.S.C.A. § 107(b) (West Supp. 2013). VA regulations clarify that all enlistments in the Philippine Scouts between October 6, 1945, and June 30, 1947, inclusive, were made under Pub. L. No. 190, as that law constituted the sole authority for such enlistments during that period. 38 C.F.R. § 3.40(b) (2012). In cases such as this, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012). See Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department; not with VA. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203 (2012); Soria, supra. Rating actions are final and binding based on evidence on file at the time the claimant is notified of a decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a) (2012). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302 (2012). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The 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. 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See 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 to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, the evidence shows that the RO initially denied the appellant's claim for VA non-service- connected pension benefits in a May 2005 decision. The appellant appealed the May 2005 decision to the Board, and the Board denied the appeal by a decision entered in June 2008. At the time of the Board's June 2008 decision, the evidence included a Separation Qualification Record, issued by the U.S. Army, reflecting that the appellant had service in the Philippine Scouts (with an Army Serial No. prefix "PS") from June 1946 to March 1949; a WD AFO Form 53 (Enlisted Record and Report of Separation), issued by the U.S. Army, reflecting that the appellant had service in the Philippine Scouts from June 1946 to March 1949, to include service in Guam; an Honorable Discharge certificate, issued by the U.S. Army, indicating that the appellant was discharged from the U.S. Army in March 1949; and a March 1949 letter to the appellant from Headquarters, Philippine Command, expressing appreciation for the appellant's service as a Philippine Scout. The evidence also included a May 2006 communication from the National Personnel Records Center, reflecting that, although the appellant's service records were fire-related, and no separation documents were available from which to verify active duty dates, alternative record sources showed that the appellant had service from June 1946 to March 1949; and the appellant's written assertions to the effect that his service from June 1946 to March 1949-to particularly include his service in Guam-was with a regular component of the U.S. Army, and that he also had service with the USAFFE from 1941 to 1945. Based on review of the evidence, the Board determined that the appellant had enlisted in the Philippine Scouts in June 1946; that his enlistment was made under the provisions of Pub. L. No. 190; and that his service, therefore, was not deemed active military, naval, or air service for purposes of eligibility for VA non-service-connected pension benefits. The Board also determined that, even if verified, there could also be no eligibility based on service in the USAFFE prior to July 1, 1946. See 38 U.S.C.A. § 107(a) (West Supp. 2013). The record reflects that the Board mailed its June 2008 rating decision, with notice of his appellate rights, to the appellant's address of record. It was not returned as undeliverable, and the appellant did not appeal the Board's decision to the Court. In addition, in June 2013, the Board denied the appellant's January 2013 motion for reconsideration of its June 2008 decision. See 38 C.F.R. § 20.1000 (2012). As such, the Board's June 2008 decision was, and remains, final. In March 2009, the appellant wrote the RO and asked that his claim be reopened. He reiterated his assertion that his service should qualify him for VA non-service-connected pension benefits, and submitted a duplicate copy of previously received WD AFO Form 53, reflecting that he had service in the Philippine Scouts from June 1946 to March 1949. In an April 2009 decision, the RO denied the appellant's petition to reopen his claim for basic eligibility for VA non-service-connected pension benefits. He was advised of the RO's decision, and of his appellate rights, and he filed a timely NOD in May 2009. With his NOD, he submitted duplicate copies of the previously received Separation Qualification Record reflecting that he had service in the Philippine Scouts from June 1946 to March 1949, the previously received Honorable Discharge certificate indicating that he was discharged from the U.S. Army in March 1949, and the previously received March 1949 letter from Headquarters, Philippine Command, expressing appreciation for his service as a Philippine Scout. The RO issued the appellant a SOC in August 2009, and the appellant filed a substantive appeal. However, inasmuch as the substantive appeal was not received until August 2010- more than a year after the date of mailing of the RO's April 2009 decision, and more than 60 days after issuance of the August 2009 SOC-the RO closed the appeal as untimely filed. The RO mailed its decision with respect to the timeliness of his appeal, with notice of his appellate rights, to the appellant's address of record. It was not returned as undeliverable, and the appellant did not appeal the RO's determination. As a result, the RO's April 2009 decision (as well as the RO's subsequent decision as to timeliness) became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009) [(2012)]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as all of the evidence submitted within a year of the RO's April 2009 decision, to include the evidence submitted with his NOD (and considered in August 2009 SOC), was either duplicative of the evidence previously before the Board in June 2008 or-in the case of his application for a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund, received in August 2009-contained no new information pertinent to his claim for basic eligibility for VA non-service-connected pension benefits. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Thereafter, the RO received his petition to reopen the claim in July 2011. The evidence received since the time of the RO's April 2009 decision consists of additional duplicate copies of the previously submitted Separation Qualification Record, WD AFO Form 53, Honorable Discharge certificate, and March 1949 letter from Headquarters, Philippine Command; repeated written assertions from the appellant that his service should qualify him for non-service-connected pension benefits; his application for a one-time payment from the FVEC Fund; and materials purporting to document his identity, to include a Philippine Postal Identity Card. The duplicate copies of the previously submitted Separation Qualification Record, WD AFO Form 53, Honorable Discharge certificate, and March 1949 letter from Headquarters, Philippine Command are, by definition, cumulative and redundant of the evidence of record at the time of the RO's decision April 2009 and, therefore, are not new. The appellant's written statements likewise amount to reiterations of arguments previously advanced, and are not new. The appellant's application for a one-time payment from the FVEC Fund, and materials purporting to document his identity are "new," in the sense that they were not of record in April 2009. However, none of those documents contain any additional, meaningful information bearing on the nature of his service, so as raise a reasonable possibility of substantiating his claim. As such, they are not material. The Board is sympathetic to the appellant's situation, and does not question the sincerity of his belief that he is entitled to the benefit he seeks. However, inasmuch as the evidence received since the time of the RO's April 2009 decision is not both new and material, the petition to reopen must be denied. ORDER As new and material evidence has not been received, the claim of entitlement to basic eligibility for VA non- service-connected pension benefits is not reopened and the appeal is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs