Citation Nr: 1329597 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 12-16 639 ) 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 the claim of entitlement to dependency and indemnity compensation. 2. Entitlement to a non-service connected death pension. ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran had recognized guerilla service from October 1943 to May 1945. The Veteran died in August 2006. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA) located in Manila, the Republic of the Philippines. 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 April 2008, the RO denied the appellant's claim of entitlement to dependency and indemnity compensation (DIC); the appellant was notified thereof and provided her appellate rights by letter dated the same month, but did not appeal the determination, and the decision is final. 2. In May 2009, the appellant sought to reopen the claim of entitlement to DIC benefits. 3. The evidence received subsequent to the April 2008 rating decision which denied DIC is either duplicative of evidence previously submitted or the evidence, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim. 4. The service department records show that the appellant's husband's military service was from October 1943 to May 1945 with the recognized guerrilla service, in service of the United States Armed Forces in the Far East (USAFFE). 5. Service in the Philippine Commonwealth Army, including the recognized guerrillas, is not qualifying service for nonservice-connected death pension benefits. CONCLUSIONS OF LAW 1. The April 2008 rating decision that denied DIC benefits is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. The evidence received since the April 2008 rating decision that denied DIC benefits is not new and material, and the claim for DIC has not been reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for entitlement to nonservice-connected death pension benefits are not met. 38 U.S.C.A. §§ 1541, 1543 (West 2002); 38 C.F.R. §§ 3.23, 3.158, 3.271, 3.272 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the United States Court of Appeals for Veterans Claims (the Court) held that 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 entitlement to the underlying claim for the benefit sought by the claimant. The duty to notify requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with 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. In Hupp v. Nicholson, 21 Vet App 342 (2007) the Court expanded the Veterans Claims Assistance Act of 2000 (VCAA) notice requirements for a DIC claim. The Court held that, when adjudicating a claim for DIC, VA must perform a different analysis depending upon whether a veteran was service-connected for a disability during his or her lifetime. The Court concluded that, in general, section 5103(a) notice for a DIC case must include (1) a statement of the conditions, if any, for which a veteran was service- connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service- connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. In addition, the Court found in Hupp that the content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. While VA is not required to assess the weight, sufficiency, credibility, or probative value of any assertion made in the claimant's application for benefits, the Court held in Hupp that the section 5103(a) notice letter should be "tailored" and must respond to the particulars of the application submitted. The record reflects that VA provided the appellant with the notice required under the duty to assist, to include Kent and Hupp compliant notice, by letters mailed in May 2009, July 2009, and October 2010. The notices were timely. The duty to assist was also met in this case. The service treatment records are in the claims file. All pertinent VA and private treatment records identified by the appellant have been obtained and associated with the file. The National Personnel Records Center was contacted to determine if there was any change in its prior determination as to the nature of the appellant's husband's military service based on the most recent evidence received. As set out below, new and material was not received to reopen the claim of DIC benefits. As such no VA examination or opinion was required. Regarding the claim for non-service connected death pension benefits, that claim is being denied based on the law and not the evidence. The Court has held that VA's duties to notify and assist are 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). Whether new and material evidence has been received to reopen the claim of entitlement to DIC. In March 2008, the appellant submitted a claim of entitlement to DIC. In April 2008, the appellant was informed that the RO denied the claim. In October 2008, the appellant submitted a statement which was construed as a timely notice of disagreement with the denial of non-service connected death pension benefits. The statement, however, did not address the claim for DIC benefits. No communication from the appellant was received within one year of notification of the denial of the DIC claim in April 2008. The decision denying service connection for DIC is final. 38 U.S.C.A. § 7105(c) (West 2002). In May 2009, the appellant submitted a claim of entitlement to DIC. In general, rating decisions and Board decisions that are not timely appealed are final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When an appellant seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." Under the applicable version of 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as 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). 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). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The evidence of record at the time of the April 2008 rating decision which denied DIC consists of documents consists of the following: The report of a physical examination conducted in June 1945 which does not reference the presence of any abnormalities or wounds. The Veteran signed an Affidavit for Philippine Army Personnel in June 1945 and May 1946. The documents are annotated to indicate that the Veteran did not receive any wounds or have any illnesses during his military service. Affidavits dated in May 1955 indicate that the affiants served with the appellant's husband and knew that he was injured in November 1944. In June 1955, the appellant's husband submitted his original application for compensation claiming that he was injured with mortar splinters in November 1944. Affidavits dated in July 1955 show the affiants served with the Veteran and witnessed him being wounded in the right abdomen from a mortar splinter. An August 1955 certification from the U.S. Adjunct General's office indicates the Veteran was found to have military service with the recognized guerillas from October 1943 to May 1945. Affidavits dated in January 1956, December 1956, February 1967, November 1974, June 1982 and July 1985 all of which indicate that the affiants knew the appellant's husband during the war and knew that he was wounded in the right abdomen from a mortar shell fragment. In July 1982, the appellant's husband submitted a document which purported to be a service treatment record showing the Veteran was wounded in the right side abdomen. The laceration was non-penetrating and one inch long and one inch deep. Documents from the Armed Forces of the Philippines and the Philippines Veterans Administration indicate the Veteran was a guerilla from December 1942 to May 1945. The RO denied the appellant's claim in April 2008 based on the RO's determination that there was no evidence showing the appellant's husband's death was due to his active duty service with the Recognized Guerillas. The evidence added to the record subsequent to the April 2008 rating decision which denied service connection for DIC consists of a certification from the service department as to the appellant's husband's military service, a copy of the May 1946 affidavit, a death certificate for the appellant's husband and an autopsy report for the appellant's husband. The Board finds that none of this evidence satisfies the definition of new and material evidence under 38 C.F.R. § 3.156. A June 2008 statement from the National Personnel Records Center affirming a prior August 1955 determination that the appellant's husband had active duty service with the recognized guerillas from October 1943 to May 1945 was received. This evidence is not new as the dates of the appellant's husband's military service was of record at the time of the prior final denial. A copy of the May 1946 Affidavit for Philippines Army Personnel was received. This evidence is not new as it was of record at the time of the prior final denial. A death certificate was submitted which reveals the Veteran died in August 2006. The cause of death was the combined effects of acute bronchopneumonia and arterial sclerotic coronary artery disease. This evidence is new as it was not of record at the time of the prior final denial. The evidence is not material as it does not indicate, in any way, that the cause of the Veteran's death was linked to his active duty service with the recognized guerillas. A copy of the appellant's husband's autopsy report was submitted. This evidence is new as it was not of record at the time of the prior final denial. The evidence is not material as it does not indicate, in any way, that the cause of the Veteran's death was linked to his active duty service with the recognized guerillas. The Board finds that none of the evidence received subsequent to the April 2008 rating decision which denied DIC satisfies the definition of new and material as set out under 38 C.F.R. § 3.156(a). The claim of entitlement to DIC has not been reopened. Entitlement to a non-service connected death pension. In March 2008, the appellant submitted a claim of entitlement non-service connected death pension. In April 2008, the RO denied the claim. The RO found that the appellant's husband only active duty service was with the Recognized Guerillas from and based on this service, the appellant did not have any legal entitlement to the benefits. In October 2008, the appellant submitted a statement which was construed as a timely notice of disagreement with the denial of non-service connected death pension benefits. Death pension benefits are generally available for surviving spouses, as a result of a veteran's nonservice-connected death. See 38 U.S.C.A. § 1541(a) (West 2002). An appellant is entitled to these benefits if the veteran served for 90 days or more, part of which was during a period of war; or, if a veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service connected, which would have justified a discharge for disability; and, if the appellant meets specific income and net worth requirements. See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4). Service as a Philippine Scout in the Regular Army inducted between October 6, 1945, and June 30, 1947, inclusive, and in the Commonwealth Army of the Philippines from and after the dates and hours when called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, United States Army, pursuant to the Military Order of the President of the United States dated July 26, 1941, is included for compensation benefits, but not for pension benefits. Service department certified recognized guerrilla service and unrecognized guerrilla service under a recognized commissioned officer, only if the person was a former member of the United States Armed Forces (including the Philippine Scouts), or the Commonwealth Army, prior to July 1, 1946, is included for compensation benefits, but not for pension benefits. 38 C.F.R. § 3.40(b), (c), and (d). Persons with service in the Philippine Commonwealth Army, USAFFE (U.S. Armed Forces, Far East), including the recognized guerrillas, or service with the New Philippine Scouts under Public Law 190, 79th Congress shall not be deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to VA non-service-connected death pension benefits. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. Importantly, only service department records can establish if and when a claimant has qualifying active service. Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994). The service department's findings are binding and conclusive upon VA. VA does not have the authority to alter the findings of the service department. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). The service department has determined on two separate occasions that the appellant's husband's only military service was with the recognized guerrillas from October 1943 to May 1945. This service does not qualify the appellant for a non-service connected death pension. In this case, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Because the appellant's husband's service does not meet the criteria described, the appellant does not meet the basic eligibility requirements for death benefits, and the claim must be denied based upon a lack of entitlement under the law. ORDER The appeal is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs