Citation Nr: 1329576 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 12-02 913 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been presented to reopen a previously denied claim for legal entitlement to VA benefits. ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION This appeal comes to the Board of Veterans' Appeals (Board) from a December 2010 rating decision, which denied the appellant's claim for recognition of service performed as a member of the Commonwealth Army of the Philippines, including the recognized guerrillas, in the Armed Forces of the United States. 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). FINDINGS OF FACT 1. In a May 2009 rating decision, the RO denied reopening a claim of entitlement to compensation under the Filipino Veterans Equity Compensation Fund, based on a determination that the appellant did not have the requisite military service. 2. Evidence received since the May 2009 rating decision is cumulative or redundant of evidence previously considered, and by itself or when considered with previous evidence does not relate to an unestablished fact and does not raise a reasonable possibility of substantiating the claim, in that no evidence has been presented that would require an inquiry to be directed to the National Personnel Records Center (NPRC) to determine whether the appellant had recognized guerilla service. CONCLUSIONS OF LAW 1. The May 2009 rating decision that denied reopening a claim of legal entitlement to VA benefits is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.302, 20.1103 (2008). 2. Evidence received since the May 2009 rating decision is not new and material, and the appellant's claim for legal entitlement to VA benefits is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The appellant's claim of legal entitlement to VA benefits was last previously denied by a May 2009 rating decision rating decision which is now final, as the appellant failed to either perfect an appeal, or submit new evidence within a year of the rating decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302. However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence is defined as 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). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. In May 2009, the RO denied a claim of legal entitlement to VA benefits. Specifically, the appellant had sought compensation under the Filipino Veterans Equity Compensation Fund (FVEC) and not directly for legal entitlement to VA benefits. However, because the threshold issue (i.e. the factual basis of each claim) adjudicated in that case, as it is in this claim to reopen, was whether the appellant had legal entitlement to VA benefits, the Board concludes that such a decision was a final rating decision which would then trigger the reopening requirements of 38 C.F.R. § 3.156. 38 C.F.R. § 7104; see Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (holding that when factual basis of two claims is the same, new and material evidence is required). In that decision the RO considered the appellant's assertion that he had requisite guerilla service, as had been previously addressed by the Board in 1999, but noted that the NPRC had found no evidence that he served as a member of the Commonwealth Army of the Philippines, including the recognized guerrillas, in the service of the Armed Forces of the United States. The appellant neither perfected an appeal nor submitted new and material evidence within a year of this decision, and the decision is therefore final. 38 U.S.C.A. § 7105. Based on the above, in order to reopen his claim, the record must show the receipt, since the May 2009 final disallowance, of non-redundant and non-cumulative evidence establishing that the appellant has qualifying service that would to entitle him to VA benefits. Since May 2009, the appellant has submitted additional evidence, including photos of himself with a group of Filipino-American WWII veterans, with individuals seeking United States citizenship, receiving a medal during a Bataan day celebration, and meeting a U.S. congressman. The appellant also submitted a number of documents from a Filipino-American Veterans group, documents that show the birth of a child, and documents pertaining to educational enrollment. However, none of this information is considered to be material as it fails to show that the appellant had requisite guerilla service in support of the United States. The appellant has also written a number of statements in support of his claim. In a November 2009 notice of disagreement, the appellant described being inducted in August 1942 into the organization of Catanduanes Liberators' Battalion. He also described how his alleged participation in several attacks on Japanese troops in 1945. The appellant lamented that when it came time to be paid at Camp Murphy, his documentation was reportedly missing. However, this information had been previously relayed at a RO hearing in 1998 and considered by the Board in an April 1999 decision. As such it is not considered to be new as it is cumulative and redundant of information that was already of record and previously considered. It is not new and material. A certification was received in from S.R. in December 2009 suggesting that he had inducted the appellant into the Catanduanes Liberators' Battalion, but S.R. had provided a similar certification in May 1992 which was previously considered by the April 1999 Board decision. As such, this piece of evidence is also not considered to be new. As described, the appellant has submitted additional evidence since the May 2009 final disallowance, but the evidence is either duplicative of evidence that was previously considered, or it does not show guerilla service. The appellant has submitted many lay statements regarding his claim to reopen. However, these statements fail to raise a reasonable possibility of substantiating his claim. The Board has closely reviewed the appellant's submissions, but the fact remains that the service department has certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II. VA is bound by this certification. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 ("The Federal Circuit's decision in Soria recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive and binding on VA."); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). As was explained in the statement of the case, the NPRC has previously found that the appellant did not have the requisite service; and NPRC has informed VA that unless a claimant reports personal data (such as a name or service number), which is different from that which was previously provided, there is no value in resubmitting a request for re-verification. As the RO noted, the appellant has not submitted a DD-214, a certification of release or discharge from active duty, or an original certificate of discharge. Documents from the Philippine government do not meet the evidentiary requirements of 38 C.F.R. § 3.203 as acceptable proof of service as they are not considered to be official documents of the appropriate United States service department. The Board has carefully considered the arguments submitted by the appellant, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The appellant has not submitted any documents from the service department that may be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA. Moreover, the Board notes that the NPRC has considered the appellant's claim, but determined that he 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. Again, the Board is bound by this certification. See e.g. Capellan, 539 F.3d at 1376 (noting that "if the United States service department refuses to verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not the VA"). Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426 (1994). In short, there is simply nothing submitted since the final disallowances of the claims which would constitute new or material evidence. No evidence added to the record since the last final disallowances of his claims shows that the appellant has the qualifying service necessary for legal entitlement to VA benefits, except the appellant's own statements, which are not new as the appellant has made the same contentions in prior denials. In summary, new and material evidence has not been submitted to reopen the appellant's claim for entitlement to VA benefits. Since his claims may not be reopened, the benefit-of-the-doubt doctrine is inapplicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The United States Court of Appeals for Veterans Claims (Court) has held that in cases where the appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated by the VCAA to inform the appellant of the information or evidence necessary to prove the element of veteran status. Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) ("Since veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of VCAA notice concerning proof of veteran status is necessary in most, if not all, cases."). In this case, although the appellant was not provided with the required notification prior to the initial adjudication of his claim, the Board finds that no prejudice has resulted. In the December 2010 notification letter, the RO explained that verification of military service was the responsibility of the National Personnel Records Center (NPRC) and its findings were binding on VA. Because NPRC had certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II, he was not legally entitled to VA benefits. The letter also explained what the terms "new" and "material" mean, how the appellant could reopen his claim, and that the appellant should submit any proof of military service that shows a variation on how his name is spelled, or usage or an alias or other name. See Kent v. Nicholson, 20 Vet. App. 1 (2006). After affording the appellant the opportunity to submit additional evidence and argument, the RO reconsidered his claim in the October 2011 statement of the case. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); Medrano v. Nicholson, 21 Vet. App. 165 (2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a Statement of the Case, is sufficient to cure a timing defect). Moreover, to the extent that the notification provided to the appellant did not include specific information regarding veteran status, the Board finds that such error is not prejudicial. As set forth in more detail below, the service department has certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II. VA is bound by this certification. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 ("The Federal Circuit's decision in Soria recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive and binding on VA."); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In light of the binding certifications, any VCAA notification error is non-prejudicial as the appellant is not entitled to benefit as a matter of law. See Valiao v. Principi, 17 Vet. App. 229 (2003); see also Palor, 21 Vet. App. at 332-33 ("Therefore, in assessing whether the appellant was prejudiced by VA's failure to notify her of the various methods available for proving Philippine veteran status, the Court can conclude only that because the appellant is currently ineligible for VA benefits as a matter of law based on the [the service department's] refusal to certify the appellant's service, she was not prejudiced by the section 5103(a) notice error."). Under the VCAA, VA also has a duty to assist claimants in the development of a claim. This includes assisting the claimant in procuring service medical records and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A review of the record indicates that all necessary evidence relative to this claim has been obtained and associated with the claims file. As set forth in more detail below, the NPRC has certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II. The appellant was offered the opportunity to testify at a hearing before the Board, but he declined. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. No reasonable possibility exists that any additional assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board further notes that the Court has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As set forth in more detail below, the appellant's appeal must be denied as a matter of law. ORDER The appellant's claim is not reopened and to that extent the claim is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs