Citation Nr: 1329602 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 12-26 128 ) 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 the claim for revocation of forfeiture. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran in this matter had active duty from December 1941 to April 1942. He died in a concentration camp in the Philippines in April 1942. The appellant is the widow of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 determination by the Manila, Republic of the Philippines, Regional Office (RO) of the Department of Veterans Affairs (VA). The RO determined that new and material evidence had not been received to reopen a final decision declaring forfeiture of eligibility for VA benefits. The Board notes that the appellant's representative has waived initial RO consideration of any new evidence submitted since the Statement of the Case [erroneously listed as a Supplemental Statement of the Case] was issued in July 2012. The Board accepts this additional evidence for inclusion in the record. See 38 C.F.R. §§ 20.800; 20.1304(c) (2012). 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. The May 2005 Board decision that found new and material evidence had not been received to reopen the decision which declared a forfeiture of all rights, claims, and benefits (except insurance benefits) under laws administered by the Department of Veterans Affairs is final. 38 U.S.C.A. §§ 7103, 7104(a) (West 2002); 38 C.F.R. § 20.1100 (2012). 2. Evidence associated with the claims file since the May 2005 Board denial, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim for revocation of forfeiture, is cumulative or redundant of evidence previously received, and does not raise a reasonable possibility of substantiating the claim for revocation of forfeiture of VA benefits under 38 U.S.C.A. § 6103(a). CONCLUSIONS OF LAW 1. The May 2005 Board decision that found there was no new and material evidence presented to reopen the claim for revocation of forfeiture is final. 38 U.S.C.A. § 7103, 7104(a) (West 2002 & Supp. 2012); 38 C.F.R. § 20.1100 (2012). 2. As evidence received since the Board's May 2005 denial is not new and material, the criteria for reopening the appellant's claim for revocation of forfeiture are not met. 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(a), 20.1105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been fulfilled by information provided to the appellant in an October 2009 letter from the RO. This letter notified the appellant of VA's responsibilities in obtaining information to assist the appellant in completing her claim, and identified the appellant's duties in obtaining information and evidence to substantiate her claim. Thereafter, this claim was denied in the July 2010 decision letter which is the subject of this appeal. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Court in Dingess/Hartman found that the VCAA notice requirements applied to all individual elements of a claim. An additional notice as to effective dates was provided in the October 2009 correspondence. The Board notes that a notice regarding disability ratings was neither provided nor applicable regarding her claim to revoke the prior decision forfeiting her DIC benefits. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish benefits that were found insufficient in the previous denial. A review of the October 2009 VCAA notice letter shows the RO notified the appellant that she would need to submit new and material evidence as she had been previously denied an application to reopen a claim to revoke forfeiture of her VA benefits. This letter specifically defined new and material evidence. It also advised her why this claim was denied earlier and why it had been established beyond a reasonable doubt that she had knowingly and intentionally presented or caused to be furnished to VA materially false and fraudulent evidence. Accordingly, any deficiency regarding notice of the basis for a prior final denial of her claim, or what information or evidence is necessary to reopen the claim, is not prejudicial to the Veteran's claim in this instance. Therefore, the Board finds that VA has complied with its duties under Kent. In any event, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S. Ct. 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). In view of the above, the Board finds that the notice requirements pertinent to the issue on appeal have been met. The Board also finds that the duty to assist has been fulfilled in this case as VA records and administrative decisions pertinent to the claim have been associated with the claims file. The Board finds that the available evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim would not cause any prejudice to the appellant. Forfeiture and New and Material Evidence - Laws and Regulations In this case, the appellant essentially asserts that she has submitted new and material evidence to reopen her claim for revocation of forfeiture and that the evidence is otherwise sufficient to restore her Dependency and Indemnity Compensation (DIC) benefits. Under governing law, a person who knowingly makes or arranges for or procures the making of a false or fraudulent affidavit, declaration, or statement concerning any claim for benefits under any law administered by the Secretary of Veterans Affairs shall forfeit all rights, claims, and benefits under all such laws. 38 U.S.C.A. § 6103(a) (West 2002) [formerly 38 U.S.C.A. § 3503(a) (1975)]. According to the implementing regulation, fraud is any act committed when a person knowingly makes or causes to be made or conspires, combines, aids, or assists in, agrees to, arranges for, or in any way procures the making or presentation of a false or fraudulent affidavit, declaration, certificate, statement, voucher, or paper, concerning any claim for benefits under any of the laws administered by VA (except laws relating to insurance benefits). After September 1, 1959, any person who commits fraud in the Philippine Islands forfeits all rights to benefits under all laws administered by VA, other than laws relating to insurance benefits. 38 C.F.R. § 3.901(a), (b), (d). In Trilles v. West, 13 Vet. App. 314 (2000) (en banc), the Court of Appeals for Veterans Claims noted that an original forfeiture action is an adversarial process initiated by VA and requires the application of the beyond-a-reasonable- doubt standard to declare a forfeiture. The Court ruled that a declaration of forfeiture may be reopened upon the presentment of new and material evidence, or revised based upon a finding of clear and unmistakable error in the original forfeiture decision. As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. 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 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 submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Therefore, the Board will undertake a de novo review of the new and material evidence issue. The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. Factual Background and Analysis In a May 2005 decision, the Board denied the appellant's petition to reopen a claim for revocation of forfeiture and subsequently denied her motions for reconsideration in February 2006 and May 2008. Her appeals to the United States Court of Appeals for Veterans Claims and to the United States Court of Appeals for the Federal Circuit were dismissed because of lack of jurisdiction in March 2007 and December 2007, respectively. Therefore, the Board's May 2005 decision was the last prior final decision on the merits in this appeal. 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1105. Absent the submission of new and material evidence, a final claim cannot be reopened or re-adjudicated by VA. 38 U.S.C.A. §§ 5103A(f), 5108; 38 C.F.R. § 3.156(a). The facts and procedural history of the appellant's claim for VA benefits and subsequent forfeiture were recounted in detail in the Board's May 2005 decision. Some are repeated herein to help explain the adjudication of this appeal. As noted in the earlier opinion, the Veteran died while a prisoner of war in a Japanese concentration camp in April 1942 and the appellant was awarded DIC benefits as the unremarried widow of the Veteran. In April 1963, an inquiry was initiated as to whether she should continue to be recognized as the Veteran's unremarried widow for purposes of DIC. A field examination conducted in April 1963 included a deposition from the appellant. She stated that she had not remarried after the Veteran's death, but had lived as a wife first with V.C., now deceased, and then with E.M., for about 6 years and was living with the latter individual at the time of the deposition. Based on the evidence obtained, the RO determined that the appellant could not be recognized as the widow of the decedent veteran for payment of DIC benefits because of her relationship with E.M. Her award of DIC was terminated as of September 19, 1962. The appellant appealed the decision, and in March 1964 the Board denied the appeal. The basis for the denial was that the appellant was living with another man and holding herself out openly to the public to be the wife of such other man. The Board further noted that, although official records did not show that the appellant was remarried, she acknowledged representing E.M. as her husband in the community, and had four children by E.M. from 1957 to 1962. In June 1964, the Board denied her motion for reconsideration. In March 1971, the appellant sought restoration as a widow for benefits purposes under Public Law No. 91-376. She submitted a statement in October 1972 wherein she stated that her common-law husband had left her sometime in 1962 when her benefits were terminated. She also provided a negative answer to the question asked in an April 1972 letter to her from VA: "Are you living with anyone at this time as if you were married even though no ceremony was performed?" A field examination was undertaken and a deposition was taken from the appellant in November 1974. She stated that she had lived with E.M. in a husband and wife relationship from the time of the last VA investigation in 1961 or 1962 up to September 1972, when they separated. The appellant said she had legally married only the veteran. She repeated that she had totally ended her marital relationship with E.M. in September 1972. The field examiner noted that, based on statements from a considerable number of people who were well acquainted with her, it had been confirmed that such relationship had continued before and after April 1971. In an administrative decision dated in March 1975, the RO found that the evidence clearly established that the appellant had deliberately presented false and material evidence to VA when she declared in her October 1972 statement that she had not lived with any man in the relationship of husband and wife since April 1971. Evidence obtained during the investigation established that her relationship with E.M. had continued before and after April 1971, up to the time of the decision. The RO concluded that the claimant knowingly and with intention to secure benefits did furnish false and fraudulent evidence of unremarried widow status for the purpose of having her benefits restored under the provisions of Public Law No. 91-376. It was recommended that the widow's statements of October 1972 and November 1974 regarding her marital status be held to be material and false. It was also recommended that the matter be presented to the Director of the Compensation and Pension (C&P) Service for forfeiture consideration. A forfeiture decision in July 1975 noted that the evidence of record established that the appellant had forfeited all rights, claims, and benefits to which she might otherwise be entitled under laws administered by the Veterans Administration (except the law pertaining to insurance benefits). The records showed that she had been living in a husband-wife relationship with E.M. before and after January 1, 1971, and had continued to live with him up to at least 1974. The decision indicated that the evidence established beyond a reasonable doubt that she had knowingly and intentionally presented or caused to be furnished to VA materially false and fraudulent statements and evidence in support of her claim for death benefits as the unremarried widow of the decedent veteran to which she had no legal entitlement, thus violating the provisions of the forfeiture statute (then Section 3503(a), Title 38, United States Code). The appellant never perfected her appeal of the July 1975 forfeiture decision. In September 1976 she wrote that "instead of appealing, I beg to apply for the restoration of my forfeited benefits under the provisions of Public Law 92- 328 granting restoration of the widow's benefits which was previously forfeited." She was advised in November 1976 that Public Law No. 92-328 did not apply in her case because she was not within the jurisdiction of the federal criminal statutes of the United States. That law applied, generally, to citizens of the United States who committed fraudulent acts in the United States. Since April 1981 the appellant has requested restoration of her previous DIC benefits on numerous occasions. At times she has argued that the death of her common law husband should make her eligible again for DIC benefits, especially because she had never formally remarried after the death of the Veteran. The numerous denial-of-benefits correspondence found in the claims file usually noted that the appellant had forfeited all rights, claims, and benefits because she deliberately presented false and fraudulent evidence to VA for the purpose of establishing entitlement to VA benefits. She was advised that there was no administrative remedy within the jurisdiction of VA for the revocation of the forfeiture declared against her. She was further advised that only new and material evidence, not previously considered, having direct bearing on the reason for the forfeiture could be considered new and material. In January 2003 the RO told the appellant she had not provided new and material evidence to reopen her claim. She appealed that decision, and in its May 2005 decision the Board found that new and material evidence had not been presented and the appellant's request to reopen the decision which declared a forfeiture of her rights to VA benefits was denied. Evidence of record at the time of the May 2005 Board decision included: VA decisions denying the appellant DIC benefits going back to March 1964 and its forfeiture decision dated in July 1975; statements of the appellant including an October 1972 statement regarding her marital status; the report of a field examiner's Memorandum of Interview in December 1973; certificates of searches of marriage records conducted in December 1973 and in November 1974; copies of depositions of acquaintances of the appellant conducted in November 1974; a copy of a deposition of the appellant in November 1974; a November 1974 report of Field Examination; two certificates and a joint affidavit regarding her place of residence; statements submitted by the appellant wherein she contended that since her common- law husband, E.M., had died, her monthly benefits should be restored; copies of a death certificate of E.M.; a certification from the Office of the Local Civil Registrar showing the facts of death of E.M., certification regarding the Veteran's death in April 1942; statements and an affidavit from the appellant as to why she endorsed and cashed checks made payable to her; and a joint affidavit by others regarding why she endorsed the checks even though the benefits were no longer due to her. The Board found then that the evidence submitted at the time was not probative of the issue at hand. The Board stated that the forfeiture was not invoked because she was remarried or cohabiting, but because she had falsely told the RO that she was neither married nor cohabiting in a marriage-like relationship at a time when she was claiming benefits as the unremarried surviving spouse of the late Veteran. The Board also found that Public Law No. 101-508, the Omnibus Budget Reconciliation Act of 1990, effective November 1, 1990, which made changes regarding eligibility for DIC to a surviving spouse of a veteran, who ceased living with another person and holding herself out openly to the public as that person's spouse, was not applicable to the issue in this appeal. Evidence received since the May 2005 Board decision included: another claim for benefits and associated correspondence and pleadings; copies of October 2009 physical examinations and an X-ray report; duplicate affidavits dated in March 2003 by the appellant and two elderly women neighbors, and a duplicate death certificate for the Veteran, that had been submitted to VA before the May 2005 Board decision; and copies of checks the appellant sent the RO in February 2011 to repay her overpayment of DIC benefits 50 years before. The duplicate affidavits of the appellant and of two elderly Filipina neighbors of the appellant dated in March 2003 stated that the appellant was the widow of the Veteran and that her DIC checks had been stopped because she was living with a common law husband, E.M., who compelled her not to repay the overpayment established by VA. The new evidence included an affidavit from a provincial official in June 2005 who noted that the appellant had never remarried since the death of E.M. in December 1978 and that she had remained single and lived without a live-in partner. In her July 2005 correspondence, the appellant claimed that she had submitted the death certificate of E.M. as evidence because her "previous husband-and-wife relationship with him" was, she thought, the primary reason for the forfeiture decision. She claimed that he led or compelled her "to present to you the false evidence in support of my claim." But she said she did so without knowing this violated VA law and she thought only a valid remarriage would violate the law. In her October 2005 correspondence, the appellant said that "at first" she and E.M. did not live together in a family household. She said that he used to come and then go away and that when he went away it was often for months or even years. She then conceded that "the whole truth" came out after neighbors became envious of her VA benefits and she was investigated. She also explained that E.M. left her when she lost her DIC benefits in 1963 and did not return for one and one-half years when he then forced her to let him stay with his children. She also conceded that when he came back they continued to live together up to 1974. The appellant also suggested that a picture of the Veteran should be considered new and material evidence as he died in action for his country never thinking of his surviving spouse's future. In March 2006 correspondence, the appellant stated that she never told any VA representative "that I never had a paramour nor cohabited in a marriage-like relationship at any time." She also denied every lying or providing false statements to VA "and I fully believe that I never committed the fraudulent acts documented and discussed in the [May 2005 Board] decision." Two affidavits executed in November 2009 from four elderly Filipinos stated that they knew that the appellant was the wife of the Veteran and that they also knew that the appellant and E.M. lived together as husband and wife from 1962 to September 1972 in Cagayan, but that they never did so after September 1972. In June 2010 correspondence, the appellant claimed that she left E.M. in 1962 when her benefits were terminated and she moved and then resided in Diliman, Quezon City where she lived for ten years. He found her, though, in 1972 and frightened her by force. They stayed together for less than a week and then E.M. disappeared again. She explained that this was why she told VA she was not living with E.M. and their final separation was September 1972. She said testimony of others that she lived openly as E.M.'s wife in Cagayan until 1974 were false. In February 2011 correspondence, the appellant enclosed checks totaling 780 pesos to repay her overpayment of DIC benefits from 50 years before. In June 2012 correspondence, the appellant denied ever living openly with another man as husband and wife. She stated that she lived with E.M. "in a very secret manner." She also explained that she was not able to repay the overpayment in 1963 as "my live-in partner forced me not to do so." She also noted that her February 2011 checks to VA had been returned to her. The appellant also claimed that she had never submitted any false and fraudulent statements for the purpose of restoring her terminated benefits. In her September 2012 VA Form 9, Substantive Appeal, the appellant claimed that the July 1975 forfeiture decision of the RO in Manila was not in accordance with the law because she did not knowingly and intentionally present or cause to be furnished to VA materially false and fraudulent statements and evidence in support of her claim for benefits. She claimed that she did not mean to mislead or misrepresent when she said in October 1972 that E.M. had never visited her since he left in 1963 as she still did not know then at the time of application whether he wanted to see her again. She also claimed that E.M. came to her boarding house between 1972 and November 1974, subsequent to the time the VA representative came. She also said that E.M. stayed at her boarding house for less than a week and that she never submitted to him anymore. She also apologized for having had a common law husband and violating the laws of God, the law of the land, and VA law. She asked to be cleared of fault for any misleading statements or documents she may have unintentionally spoken or used. The Board finds that most of this evidence is new as these particular documents were not previously submitted to the RO. In the Board's judgment, however, these statements do not raise a reasonable possibility of substantiating the proposition that the appellant did not commit fraud in her efforts to restore her DIC benefits. Indeed, even if the appellant's individual statements were deemed credible, considered together they are contradictory and inconsistent. The fact remains that this evidence does not raise a reasonable possibility of substantiating the revocation of forfeiture claim. Mostly, the new evidence reargues old contentions with the appellant conceding she lived in a husband-wife relationship with another man after the Veteran's death (July 2005 statement), that she and E.M. lived together until 1974 (October 2005 statement), and that she and E.M. never lived together after September 1972 (June 2010 statement). Her inconsistent statements about the duration of her common law marriage do not support her blanket avowals now that she did not in the past knowingly or intentionally furnish false evidence to VA. In addition, the Board notes that the new evidence received after the last prior final decision in May 2005 inconsistently states the following: that E.M. left her in 1963 and did not return for one and one-half years and then they lived together until 1974 (October 2005 statement); that she left E.M. in 1962 and moved to another area where E.M. did not find her until 10 years later when they stayed together for less than a week (June 2010 statement); and that E.M. came to her boarding house between 1972 and November 1974 and stayed for less than a week (September 2012 statement). Moreover, this new evidence blames the common law husband for somehow compelling her to provide VA with "the false evidence in support of my claim" (July 2005 statement), but also reminds VA that she could not repay the overpayment of VA benefits in any event because of her poverty at the time (affidavits dated in March 2003). In order to substantiate her claim, the appellant would have to produce new and material evidence on the issue of whether she knowingly and intentionally presented or caused to be furnished materially false statements and evidence in pursuit of VA death pension benefits. In her VA Form 9, Substantive Appeal, the appellant claims this is indeed the case, but her blanket denial in her September 2012 document does not, in the Board's judgment, raise a reasonable possibility of substantiating the proposition that the appellant did not knowingly and intentionally present or cause to be furnished materially false statements and evidence. The cumulative evidence shows that the appellant lived as the common law wife of a man other than the Veteran as late as 1974. Her September 2012 VA Form 9, in which she asks for forgiveness for having a common law husband in violation of VA regulations, and her July 2005 statement that her common law husband compelled her to present VA with the false evidence used in her claim, very clearly shows that the appellant understood that she submitted false evidence in relation to her claim. It is the judgment of the Board that the appellant's statements in the period after the May 2005 Board decision amount to argument by the appellant and that neither alone, nor when considered with all the evidence of record, do they raise a reasonable possibility of substantiating the proposition that she did not knowingly and intentionally present or cause to be furnished to VA materially false and fraudulent evidence in support of her claim for VA benefits. In summary, the newly received evidence is not material to the disposition of the claim for revocation of forfeiture of VA benefits. The information and evidence which the appellant has provided do not directly contradict or warrant reconsideration of the May 2005 decision confirming the forfeiture of benefits. The Board again observes that the Court has held that a declaration of forfeiture may be revoked upon the receipt of new and material evidence or based on a finding of clear and unmistakable error in the original forfeiture decision. Trilles, 13 Vet. App. at 322. The only indication that the appellant contended that VA committed clear and unmistakable error in its May 2005 decision was her statement found in her September 2012 VA Form 9 that she felt the July 1975 forfeiture decision was not in accordance with the law because she did not knowingly and intentionally present or cause to be furnished to VA materially false and fraudulent statements and evidence in support of her claim for benefits. She claimed that she did not mean to mislead or misrepresent when she said in October 1972 that E.M. had never visited her since he left in 1963. However, as noted above, the new evidence continues misleading and confusing allegations about when and how often she saw or lived with E.M. between 1963 and 1974. Thus, the Board finds that this evidence does not raise a reasonable possibility of substantiating the claim. As such, this new evidence is merely cumulative of the evidence submitted prior to the May 2005 Board decision. Accordingly, the Board finds that the evidence received subsequent to the May 2005 Board decision is not "new and material" as contemplated by 38 C.F.R. § 3.156(a), and provides no basis to reopen the appellant's claim. 38 U.S.C.A. § 5108. Because the appellant has not fulfilled her threshold burden of submitting new and material evidence to reopen her finally disallowed claim, the benefit-of-the- doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been presented, the application to reopen a claim for revocation of forfeiture of VA benefits is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs