BVA9502615 DOCKET NO. 93-10 588 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Veterans Benefits Administration, Compensation and Pension Service THE ISSUE Whether new and material evidence has been submitted to reopen a claim for revocation of the forfeiture of the veteran's rights to U.S. Department of Veterans Affairs (VA) benefits under the provisions of 38 U.S.C.A. § 6104(a) (West 1991). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Sherman, Counsel INTRODUCTION The veteran has been credited with pre-war service from September to December 1941. He was in beleaguered status from December 1941 to May 1942, and listed as missing for three weeks in May 1942. He was a prisoner of war (POW) from May 1942 to January 1943. He was on "no casualty status" from January 1943 to August 1945, and had service in the Regular Philippine Army from August 1945 until June 1946. He was not entitled to receive pay for the period January 1943 to May 1943, and for the period October 1944 through April 1945, and the reason given in service department records is that he had alleged POW status, not supported, during those times. He was also not entitled to pay for the period May 1943 through October 1944 because he was employed by the Japanese Bureau of Constabulary during that time. For the period May 1945 until August 1945, he was listed as following civilian pursuits, not engaged in military activities, and not entitled to receive military pay for that period. The service department has certified that the veteran has no recognized guerrilla service. By decision of November 30, 1978, the Board of Veterans' Appeals (Board) found there to be no doubt that the veteran had served in an active capacity with the Japanese Bureau of Constabulary between May 1943 and October 1944. The Board also found that the veteran rendered assistance to an enemy of the United States during that period and was promoted. The Board concluded that the veteran had forfeited all accrued or future gratuitous benefits under laws administered by the VA pursuant to 38 U.S.C. § 3504(a) (now 38 U.S.C.A. § 6104(a)), and that the forfeiture invoked against the veteran was proper. The Board denied the veteran's appeal seeking to revoke the forfeiture. In April 1979, the veteran sought reconsideration of the Board's decision, and in May 1979, the Chairman of the Board notified the veteran that his request for reconsideration was declined for failure to allege and substantiate any error of fact or law in the Board decision. This appeal arises following the veteran's attempt to make a claim for compensation or pension in September 1992. By letter dated October 1992, the Manila, Philippines, regional office (RO) notified the veteran that forfeiture is a permanent bar to gratuitous VA benefits. The veteran asked for reconsideration of that decision, and a Statement of the Case (SOC) was provided by the Veterans Benefits Administration, Compensation and Pension Service, confirming the determination that the veteran had not submitted new and material evidence to warrant reopening his claim for revocation of forfeiture. CONTENTIONS OF APPELLANT ON APPEAL In effect, the appellant contends that the evidence submitted since the Board denied revocation of forfeiture in November 1978 is new and material, that the claim should be considered to be reopened, and that the forfeiture previously invoked against the veteran should be revoked. The veteran has alleged that he was forced to join the Bureau of Constabulary (BC) and that he provided secret military service to the Philippine guerrillas while serving in the BC. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted to reopen the claim for revocation of the forfeiture invoked against the veteran, and the claim is dismissed. FINDINGS OF FACT 1. By decision of November 1978, the Board determined that the veteran, under the provisions of 38 U.S.C. § 3504(a) (now 38 U.S.C.A. § 6104(a)), had forfeited all accrued or future gratuitous benefits under laws administered by the VA. 2. Additional evidence submitted since the November 1978 Board decision is either duplicative of evidence previously considered or is not probative of the issue before the Board. CONCLUSIONS OF LAW 1. The November 1978 Board decision denying revocation of forfeiture of the right to gratuitous benefits under all laws administered by the VA is final. 38 U.S.C.A. §§ 6104(a), 7103(a), 7104 (West 1991); 38 C.F.R. § 20.1100 (1994). 2. The evidence received since the November 1978 Board decision is not new and material. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.156(a), 20.1105 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Facts In March 1975, the veteran submitted a claim for VA medical care. In connection with his claim, the veteran submitted a "Statement of Service" dated August 1963 from the Armed Forces of the Philippines, a copy of General Orders Number 323 dated February 1971 reflecting the veteran's retirement from the Armed Forces of the Philippines, and a request for examination of the veteran at Bohol Provincial Hospital. Service department records obtained by the RO reflected the veteran's employment by the Japanese Bureau of Constabulary from May 1943 through October 1944 and showed that the veteran had no recognized guerrilla service. The RO obtained documents relating to the activities of the BC in the time frame during which the veteran was employed by the BC and relating to the veteran's status. The documents included a report on "General Conditions on Peace and Order in Bohol," a nine-page document detailing conditions and activities for the Bohol Constabulary from its establishment in February 1943 to the time of the report, which appears to be approximately one year later. (Other evidence described hereafter established that the veteran was a member of the Bohol Constabulary, an element of the Bureau of Constabulary, during a portion of the period covered by the report.) A monthly roster of the 2d Co., GST (General Service Troop, Manila), dated July 1943, lists Acting Sgt.-Cpl. [redacted] as having been appointed on July 16, 1943, and having joined on July 25, 1943. A document from the BC, 2d Bohol Co., dated January 31, 1944, lists Corporal [redacted] as appointed May 16, 1943, and joined December 3, 1943, from Manila. A report from the Office of the Senior Inspector in Tagbilaran, Bohol, dated April 24, 1944, provides details of an encounter with armed bands (guerrillas) at Sikatuna. An extract from special orders, dated July 4, 1944, reports the promotion of [redacted], 2d Bohol Co., to Sergeant, effective July 1, 1944. Four pages of a report signed by a Senior Inspector with the BC mentions the transfer of [redacted] to Bohol from Manila. A monthly roster dated August 1, 1944, lists Sergeant [redacted] as part of the 2d Bohol Co. A report on "Mass Desertions" dated November 1, 1944, lists Sgt. [redacted] as deserting without arms and ammunition on October 29, 1944. The RO ordered a field investigation of the veteran's loyalty status under 38 U.S.C. § 3504(a) (now 38 U.S.C.A. § 6104(a)). The field examiner took depositions of the veteran, of Felipe Geniston (a member of the BC at the same time as the veteran), of Rufino Kapirig (guerrilla member), and Melecio Remolador (runner for the resistance). Four affidavits executed on behalf of the veteran in March and April 1946 by individuals familiar with the veteran's activities during the war were obtained from the veteran's Philippine Army 201 file. They were affidavits of Gerardo Racho, Teogenes Borja, Pedro Garit, and Daniel Dangoy. The field examiner also interviewed Teogenes Borja and Jose Ma. Rocha, and their depositions, dated May 1976, are in the file. The field examiner submitted a report of his findings in June 1976. The examiner noted the veteran's service with the Japanese-controlled Bureau of Constabulary for approximately one year and ten months. His initial appointment with the BC was with the GST (General Service Troop) in Manila, which was an elite unit charged with specific missions aimed against the underground movement. He was transferred to the 2d Bohol Company some six months later. The veteran was issued a reglementary BC uniform and was promoted from corporal to sergeant. He served as a supply sergeant in charge of keeping and issuing firearms. He alleged that he was prevailed upon to remain with the BC by a captain in the guerrillas in order that he might provide information to the guerrillas on Japanese troop movements and strengths. After escaping from the BC, he was imprisoned by the guerrillas for a number of months. It was noted that the veteran did not have recognized guerrilla service. The field examiner recommended that the veteran be charged with violation of 38 U.S.C. § 3504(a). In July 1976, a recommendation for forfeiture was made by the senior claims examiner, and the veteran was notified of the charge. In response, the veteran submitted a certificate of membership in The American Legion, a certificate of hospital admission and diagnosis, and affidavits of Virgilio Mendoza, Emilio Fullido, and Sofio Bayron dated August 1976. Accompanying that evidence was a statement from the veteran. All records were submitted to the Compensation and Pension Service in Washington, D.C., for determination of the forfeiture issue. In March 1977, the C&P Service issued a decision that the veteran had forfeited all rights, claims and benefits to which he might otherwise be entitled under the laws administered by the VA. In making its decision, the C&P Service found that "the records establish beyond a reasonable doubt that the veteran's sustained membership and service of 18 months in the Japanese sponsored and controlled Bureau of Constabulary, a component of the Imperial Japanese Military Forces, during the enemy occupation of the Philippines, was of assistance to the Imperial Japanese Government in violation of the provisions of Section 3504(a) , Title 38, United States Code." In December 1977, the veteran filed a Notice of Disagreement (NOD) with the decision of the C&P Service. He submitted therewith a copy of an Authorization for Issuance of Awards for [redacted] from the Department of the Army, Adjutant General, dated April 1963. In January 1978, the veteran submitted further documents, including affidavits from Mariano O. Pizarras, Juan N. Torralba, Vicente K. Nunag, Jr., and Teogenes Borja; two copies of one share in Philippine Veterans Bank; and copies of a document previously submitted showing his retirement orders. In November 1978, the Board issued a decision upholding the forfeiture. In April 1979, the veteran requested reconsideration of the Board's decision. In support of his request, the veteran submitted only duplicates of documents already considered by the Board. In May 1979, the Board's Chairman advised the veteran that he had not made any allegation or substantiation of error of law or fact that would warrant reconsideration of the Board's decision. A decision of the Board is final unless the Chairman orders reconsideration of the case. 38 U.S.C.A. § 7103(a) (West 1991); 38 C.F.R. § 20.1100 (1993). The Board decision of November 1978 is a final decision. In September 1992, the veteran filed an application for compensation and pension and a travel order to obtain a POW examination. In support of his claim, he submitted his own affidavit dated January 1992; a photograph of himself in uniform; a record of military awards signed by the veteran; his birth registration certificate; a copy of the second page of his retirement orders, already of record; a copy of a letter dated July 1962 to a Captain Caliso from the veteran, asking for confirmation of the veteran's military service; and a sheet dated September 1992 containing diagnoses for the veteran. In October 1992, the RO advised the veteran by letter that the evidence he had submitted was not new and material to the forfeiture issue, and that forfeiture acted as a permanent bar to receipt of any gratuitous VA benefits. The veteran responded with a "Letter of Reconsideration" which was considered in the nature of a Notice of Disagreement by the RO. The file was referred to the Compensation and Pension Service, which in February 1993 issued a Statement of the Case confirming that the veteran had not submitted evidence constituting a new factual basis to warrant reopening the claim for revocation of forfeiture. In March 1993, the veteran filed a substantive appeal and submitted nine pages of copies of medical records dated November 1992 from Makati Medical Center. II. Analysis In order to reopen a claim which has been previously finally denied, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 1991). When presented with a claim to reopen a previously finally denied claim, a two-step analysis must be performed by the Department. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must be determined whether the evidence submitted by the claimant is new and material. If it is, the new evidence must be reviewed in the context of the old to determine whether the prior disposition should be altered. Manio; 20 C.F.R. § 20.1105 (1993). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1993). New evidence must be more than merely cumulative, and material evidence "is that which is relevant to and probative of the issue at hand and which (assuming its credibility) must be of sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Sklar v. Brown, 5 Vet.App. 140, 145 (1993). This new-and-material-evidence threshold in the context of a claim to reopen is a higher threshold than a claimant is required to cross in order to state a well-grounded original claim. Robinette v. Brown, No. 93-985 (U.S. Vet. App. Sept. 12, 1994). The specific matter under consideration in this case is whether the 1978 Board decision denying revocation of forfeiture was proper. Under applicable law, any person shown by evidence satisfactory to the Secretary to be guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or of its allies shall forfeit all accrued and future gratuitous benefits under laws administered by the VA. 38 U.S.C.A. § 6104(a) (West 1991) (formerly 38 U.S.C. § 3504(a)). Therefore, to be considered new and material in this case, the evidence must be non-cumulative and must be relevant to and probative of the question of whether the veteran rendered assistance to an enemy of the United States or of its allies. In this case, the veteran has submitted evidence since the final denial of his original claim. This evidence consists of copies of documents submitted with his request for reconsideration in April 1979, the documents submitted with his claim in September 1992, and the documents submitted with his substantive appeal in March 1993. The documents submitted with the 1979 request for reconsideration consisted entirely of duplicates of records already considered by the C&P Service and the Board. They are therefore only cumulative and may not be considered new and material. The documents submitted with the claim in September 1992 consist of items that are duplicative or that are not relevant to and probative of the issue of whether the forfeiture invoked against the veteran was proper. The veteran's affidavit dated January 1992 reiterates the veteran's account of his military service, internment as a prisoner of war, alleged service to the guerrilla movement while employed by the Bureau of Constabulary, his escape from the BC and imprisonment by the guerrillas, and his subsequent military service. The only "new" element of the affidavit is that it contains an assertion that the veteran requires a protocol examination for former POW benefits. That assertion is not relevant to or probative of the issue of whether the forfeiture of benefits was proper. The record of awards signed by the veteran is duplicative of information contained in documents previously submitted. The only difference is that, rather than being a copy of an official document, it is a list that appears to have been prepared by the veteran himself. It is new only in the sense that the specific paper was not previously in the file. The information it contains is cumulative and is therefore not new and material. The copy of the second page of the veteran's retirement orders is duplicative. The retirement orders were among the first documents submitted by the veteran in connection with his original claim and have been considered previously. They are therefore not new and material. A copy of the veteran's 1962 letter to Captain Caliso requesting confirmation of the veteran's military service was not previously of record in the file, however, it is not relevant or probative. At best, it represents the veteran's understanding of his periods of military service and a request that it be verified officially. Since the relevant service is that rendered during the war and under U.S. authority, subsequent service in the Armed Forces of the Philippines is not relevant. To the extent that the information contained in the letter was also contained in the "Statement of Service" provided by the Armed Forces of the Philippines and filed with the veteran's original claim, the letter is cumulative of evidence already considered by the Board. It is therefore not new and material. The veteran's photograph, birth registration, and diagnosis are likewise not relevant to or probative of the issue of whether forfeiture was proper. They are therefore not new and material. Accompanying the veteran's substantive appeal were copies of nine pages of medical records dated November 1992 from Makati Medical Center. These records deal with tests and treatment of the veteran. They have no bearing on the issue of whether the veteran provided aid to an enemy of the United States through his service in the BC and are therefore not relevant to or probative of the issue of whether forfeiture was proper. They are not new and material so as to warrant reopening the claim for revocation of forfeiture. There being no evidence adduced or allegation made that might be considered new and material, the second step of the Manio analysis cannot be taken. Without new and material evidence, there is nothing to review in the context of the previously submitted evidence, and the 1978 final Board decision is not reopened. ORDER New and material evidence not having been submitted to reopen a claim for revocation of the forfeiture of the veteran's rights to VA benefits under the provisions of 38 U.S.C. § 3504(a) (now 38 U.S.C.A. § 6104(a)), the claim is not reopened, and the appeal is dismissed. I. S. SHERMAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.