Citation Nr: 1804201 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 13-16 857 ) 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 submitted to reopen a claim for entitlement to nonservice-connected pension; and if so, whether the reopened claim should be granted. 2. Entitlement to special monthly pension (SMP) based on the need for regular aid and attendance or on account of being housebound. REPRESENTATION Appellant represented by: American Red Cross WITNESSES AT HEARING ON APPEAL The Appellant and his family friend ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The appellant had service with the Special Philippine Scouts from May 1946 to March 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of Philippines. This case was previously before the Board in April 2015 at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. In connection with this appeal, the appellant was afforded a hearing at the RO in February 2015. A transcript of that hearing has been associated with the record. However, the Veterans Law Judge who presided over that hearing is no longer with the Board. In a September 2017 letter, the appellant was notified of that fact and offered the opportunity to have a hearing before a current member of the Board. To date, the appellant has not requested a new hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). FINDINGS OF FACT 1. In two unappealed August 1991 and August 1996 decisions, the Board denied the appellant's claim of entitlement to nonservice-connected pension. 2. The evidence associated with the claims file subsequent to the August 1991 and August 1996 Board decisions is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim. 3. The appellant does not have active duty service necessary to qualify for SMP based on the need for aid and attendance. CONCLUSIONS OF LAW 1. New and material evidence has not been received sufficient to reopen a claim of entitlement to nonservice-connected pension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for entitlement to SMP based on the need for aid and attendance or housebound status have not been met. 38 U.S.C. §§ 1521, 1541, 5107 (2012); 38 C.F.R. §§ 3.351, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to Nonservice-Connected Pension The appellant originally filed a claim of entitlement to nonservice-connected pension in January 1990. A March 1991 rating decision denied entitlement on the basis that the appellant did not have qualifying active service. The appellant appealed that decision to the Board. In August 1991, the Board denied the appellant's entitlement to nonservice-connected pension on the same basis. The appellant later filed for nonservice-connected pension in November 1993, and his claim was denied once more in a March 1994 administrative decision. The appellant appealed that decision to the Board. In August 1996, the Board again denied the appellant's claim based on a finding that he did not have qualifying active service. The pertinent evidence of record at the time of August 1996 decision included the following: the appellant's statements that he had active duty; medical records; and the appellant's military personnel records (MPRs) including a discharge certificate. The pertinent evidence that has been received since the August 1996 Board decision includes the following: testimony from the appellant received at his February 2015 Board hearing; a VA medical examination; and a report from the National Personnel Records Center (NPRC) confirming the appellant's Philippine Scout service, but returning a negative finding that the appellant had any qualifying active service. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 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 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 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). The Board finds that the evidence received since the August 1996 Board decision is cumulative and redundant in nature and that it does not raise a reasonable possibility of substantiating the appellant's claim. Each time that the appellant's claim was denied, the crux of the denial was based on the lack of proof of qualifying active service. As such, the only evidence which could properly be deemed both new and material would have been evidence showing that the appellant did in fact have qualifying active service. The Board acknowledges that there was in fact new evidence submitted, with the most notable being the report from the NPRC; however, as the findings were negative as to finding qualifying active service, that evidence does not raise a reasonable possibility of substantiating the claim and is therefore immaterial. Accordingly, the Board must conclude that new and material evidence to reopen a claim of entitlement to nonservice-connected pension has not been received and the August 1996 Board decision remains final. As the appellant has not fulfilled his threshold burden of submitting new and material evidence to reopen that finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Entitlement to SMP The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The appellant contends that he is entitled to SMP. Specifically, the appellant asserts that he served in the United States Army in the Republic of the Philippines from May 1946 to March 1949. Relevant to this case, in order to qualify for a special monthly pension, the appellant must have at least 90 days of active duty service during a period of war. 38 C.F.R. § 3.3(a)(3)(i). Also, active service means full-time duty in the Armed Forces, other than for ACDUTRA. 38 C.F.R. § 3.6(b)(1). Military personnel records show that the appellant in fact served as a Philippines Army Scout from May 1946 to March 1949. The appellant was not found to have served any active duty time. VA pension benefits shall be paid to wartime veterans who are permanently and totally disabled from nonservice-connected disabilities which are not the result of willful misconduct. 38 U.S.C. § 1521(a) (2012). The term 'veteran' means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2) (2012). Service as an Old Philippine Scout prior to October 6, 1945, is included for pension, compensation, dependency and indemnity compensation (DIC) and burial allowances. 38 C.F.R. § 3.40(a) (2017). However, service prior to July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines in the service of the Armed Forces of the United States (including recognized guerrilla service) "shall not be deemed to have been active military, naval, or air service" for pension benefits purposes. 38 U.S.C. §§ 107(a) (2012); 38 C.F.R. §§ 3.40, 3.41 (2017). Enlistments and reenlistments of Philippine Scouts in the Regular Army from October 6, 1945 to June 30, 1947, as well as recognized guerrilla service and unrecognized guerrilla service, are also not included for pension benefits purposes. 38 C.F.R. §§ 3.40(b)-(d); 38 U.S.C. § 107(b) (2012); 38 C.F.R. § 3.7(p) (2017). As the evidence of record does not show qualifying active service, the claim must be denied as a matter of law. Therefore, on the facts before the Board, the claim must be denied as there is no reasonable doubt which the Board can resolve in favor of the appellant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Though the Board understands that the appellant will be disappointed with the denial of his claim, the Board is bound to apply the laws, including those listed above, enacted by Congress and regulations put in place by VA to administer those laws. ORDER The Board having determined that new and material evidence has not been presented, reopening the claim of entitlement to nonservice-connected pension is denied. Entitlement to special monthly pension is denied. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs