Citation Nr: 1343044 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 10-42 809 ) 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 submitted to reopen a claim for entitlement to a non-service connected pension. ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had recognized service with the New Philippine Scouts from May 1946 to March 1949. This matter originally came to the Board of Veterans' Appeals (Board) from an October 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, that denied a non-service connected pension. The RO characterized this claim as one for entitlement to a non-service connected pension. However, review of the claims folder reveals that the Veteran has made this claim several times, with the last final denial issued from the RO in January 2003. Thus, the Board is re-characterizing this as a claim to reopen based on new and material evidence. In so doing, the Board has considered whether adjudication in the first instance here on this issue would prejudice the Veteran, see Cf. Hickson v. Shinseki, 23 Vet. App. 394 (2010), and has determined that it would not. While the RO did not undertake a "new and material" analysis, it did analyze the evidence submitted and denied the Veteran's claim as a matter of law. As the Board's concludes below that the evidence submitted is not "new and material" and could not possibly substantiate the claim even with further RO consideration, the Veteran will not experience any prejudice with its adjudication. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran was last denied a non-service connected pension in a January 2003 RO decision. He did not appeal. 2. Evidence submitted of the Veteran's period of service is redundant of what was already contained in the record. CONCLUSIONS OF LAW 1. The January 2003 RO decision that denied the Veteran a non-service connected pension is final. 38 U.S.C.A. § 7105 (West 2002). 2. Evidence submitted in support of his claim on appeal is neither "new" nor "material." REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify claimants for VA benefits of information necessary to complete and support a claim and to assist claimants in the development of evidence. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2004). 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally, proper notice must be provided to the claimant before the initial unfavorable adjudication by the RO. 38 C.F.R. § 3.159(b)(1); Mayfield v. Nicholson, 444 F.3d 1328, 1334 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). With regards to new and material evidence claims, the Court held that the VCAA notice requirements require VA 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 for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. Kent v. Nicholson, 20 Vet. App. 1, 11 (2006). As the RO did not characterize the Veteran's claim as one to reopen based on new and material evidence, he did not receive proper Kent notice before the October 2009 decision. Review of the claims file reveals, however, that the Veteran was informed in October 2005 as to what constituted "new and material" evidence, and what he needed to submit in order to substantiate his claim, specifically "military service records that show that you served in a 'regular' component of the United States Armed Force." The letter also informed him that the New Philippine Scouts were not entitled to non-service connected pensions under Public Law 190. Additionally, the Veteran was sent a letter in April 2010 which again detailed the type of service needed for a non-service connected pension and specifically stated "[w]e cannot reopen your claim for disability pension unless you can show that you had military service with any of the regular components of the United States Armed Forces." The U.S. Supreme Court has held that any error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the Veteran has not demonstrated any prejudicial or harmful error in VCAA notice. Thus, the Board concludes that any "notice" defects were cured, and even if they were not, would not affect the essential fairness of the adjudication of the claim. Furthermore, the underlying issue here turns on statutory interpretation. See Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, it would appear that the VCAA is not applicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429- 30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought); VAOPGCPREC 5-04. Merits of the Claim A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). Evidence is new when it has not been previously submitted to the VA. It is material when by itself or when considered with previous evidence of record, the evidence relates to an unestablished fact necessary to substantiate the claim. Such evidence cannot be cumulative or redundant of the evidence of record at 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 order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. 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). Evidence will satisfy the reasonable possibility standard when, considered with the old evidence, it would at least trigger the VA's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In an application to reopen a previously denied claim, the Board must examine evidence which has been submitted since the last prior final RO or Board decision which denied the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The last prior, final decision regarding the Veteran's claim was issued in January 2003. There, the Veteran's claim was denied as a matter of law, as the Veteran did not have requisite service availing himself to eligibility to a non-service connected pension. He did not appeal this decision and it became final. 38 U.S.C.A. § 7105 (West 2002). A veteran is defined as a "person who served on active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C. 101(2); see 38 C.F.R. 3.1(d) (2006). Service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, is recognized service for certain VA purposes, as authorized by 38 U.S.C.A. § 107 (West 2002); 38 C.F.R. § 3.40 (2006). Service of persons enlisted under section 14 of Public Law No. 190, 79th Congress (Oct. 6, 1945) is included for compensation and dependency and indemnity compensation, but not for pension benefits. All enlistments and reenlistments of Philippine Scouts in the Regular Army between October 6, 1945 and June 30, 1947, inclusive, were made under the provisions of Public Law No. 190, as it constituted the sole authority for such enlistments during that period. This paragraph does not apply to officers who were commissioned in connection with the administration of Public Law No. 190. 38 C.F.R. § 3.40(b). 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, U.S. 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). In this case, documents of record reflect that the Veteran served with the New Philippine Scouts from May 1946 to March 1949. As noted above, service with the New Philippine Scouts under Public Law 190, 79th Congress, does not constitute active military service with the Armed Forces of the United States for the purpose of establishing entitlement to non-service connected disability pension. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40(b), (c), (d). Evidence of this service, as submitted by the Veteran himself, in the form of an October 1977 National Personnel Records Center (NPRC) letter existed in the record at the time of his last final decision on this claim in January 2003. Furthermore, the Veteran's service was again verified via the Personnel Information Exchange System (PIES) in September 2009. These verifications are binding on VA such that VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet. App. 530 (1992). The Veteran has also submitted copies of his DA Form 1577 and WD AGO Form 100 (Separation Qualification Record) many times including prior to the January 2003 decision, which substantiate that he served from May 1946 to March 1949. He has not submitted any evidence that shows he may have had other qualifying service. Thus, no "material" evidence has been submitted. The Veteran has continually submitted three affidavits (two from 1982 and one from 1956) detailing his time fighting in the Philippines over the years, including with the claim on appeal. However this evidence was in the record at the time of the last final decision, and thus is not "new." Even if it was, the affidavits do not raise the possibility of substantiating his claim. He has also continually submitted the same pamphlets detailing what he perceives to be VA regulations regarding benefits for Filipino veterans; however these were not issued by the VA and contain false information. He was sent notice of these inaccuracies many times, including in April 2005 and June 2006. Regardless, the pamphlets are neither "new" nor "material." The Board acknowledges the Veteran's contentions. However, in the absence of evidence that the Veteran had service other than that which has already been identified, he does not meet the basic eligibility requirements for the benefit he is seeking. He has not submitted new and material evidence, and his claim continues to be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that, in a case in which the law is dispositive, the claim must be denied based on a lack of entitlement under the law). ORDER New and material evidence has not been submitted and the Veteran's claim remains denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs