Veteranclaims’s Blog

March 27, 2012

Single Judge Application, New and Material, Determination of Materiality, Duran v. Brown, 7 Vet.App. 216, 220 (1994); Shade, 24 Vet.App. at 121

Excerpt from decision below:
In making the determination of materiality, “the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible.” Duran v. Brown, 7 Vet.App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992)). However, the Secretary is not required “to consider the patently incredible to be credible.” Id.; see also King v. Brown, 5 Vet.App. 19, 21 (1993) (noting that the Board must not assume the credibility of evidence “when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion”) (citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992)). In Shade, the Court held that the issue of reopening must be
3
confined to the subject of existence of new and material evidence alone
and does not include a separate outcome-based element. Shade, 24 Vet.App. at 121. The Court emphasized “that the phrase ‘raise a reasonable possibility of substantiating the claim’ does not create a third element for new and material evidence,” but was intended to provide “guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements.” Id. at 117.
===============
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-0002
CRISTINA V. UMAGAT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before NEBEKER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

NEBEKER,Judge: The appellant,Cristina V. Umagat, appeals a September 29,2010, Board of Veterans’ Appeals (Board) decision that determined that new and material evidence had not been
received to reopen a claim for revocation of forfeiture of entitlement to
VA benefits. This appeal
is timely and the Court has jurisdiction to review the Board’s decision
pursuant to 38 U.S.C.
§§ 7252(a) and 7266. Single-judge disposition is appropriate as the
issue is of “relative simplicity”
and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990).
For the reasons that follow, the Court will affirm the September 2010
Board decision.
I. FACTS
The veteran, Tanny Umagat, served on active duty from March 1951 to
October 1953.
Record (R.) at 165-68. He died in October 1953. R. at 167, 168. In
December 1953, the veteran’s
widow, the appellant, filed a claim for survivor’s benefits. R. at 1037-46.
She was notified in
September 1954 that she would be receiving death compensation benefits as
the unremarried widow
of the deceased veteran. R. at 913. In December 1960, VA received a letter
from the veteran’s
parents stating that the appellant was living as husband and wife with
Jessie Cruz. R. at 830-31. A
VA field examination was conducted in March 1961. R. at 787-820. During a
deposition, the

appellant stated that she had lived with Jessie Cruz from January 1960 to
November 1960, as
husband and wife, had a child together during that time, and was expecting
a second child with him.
R. at 795-97. In August 1961, VA determined that the appellant had
remarried and informed the
appellant that her death compensation benefits would be discontinued on
that basis. R. at 771-74.
AnotherfieldexaminationwasconductedinApril1974to
determinewhethertherelationship
between the appellant and Jessie Cruz had been terminated. R. at 584-97,
608. During the field
examination, theappellantstatedthathermarital relationship with Jessie
Zapata”started in 1960and
was terminated in February1974.” R. at 587. She reported that she had
seven children with him and
that her “marital reputation in the community” was that of the wife of
Jessie Zapata. R. at 587-88.
She explained that Jessie Zapata went by several aliases, including ”
Jessie Cruz” and “Jesus de la
Cruz.” R. at 587. In a May 1974 VA administrative decision, it was found
that the appellant’s June
1971 statement that she no longer lived with Jessie Cruz was false in
light of her contradictory
testimony, and the matter was referred to the Director of Compensation and
Pension. R. at 579-83.
It was subsequently determined that the appellant had forfeited all rights,
claims, and benefits under
VA law for deliberately presenting false evidence to VA. R. at 490. The
appellant appealed that
decision. R. at 358-83, 554-55. In support of her appeal, she submitted
affidavits, including one
from Jesus Zapata, stating that he did not live with her as husband and
wife. R. at 370. She also
submitted a joint affidavit by Jesus Zapata and Susana Gutierrez stating
that they had been married
for 27 years and were currently married. R. at 336-46. In July 1977, the
appellant argued that Jessie
Cruz was married to someone else during the time it was alleged that they
were living as husband
and wife. R. at 305-23. The Board issued a decision in July 1977 denying
removal of the forfeiture
against the appellant because it found that she had knowingly submitted
false evidence in her claim
for death benefits. R. at 325-29.
The appellant again requested that her claim be reopened in October2008. R.
at 133-82. She
submitted evidence of her marriage to the deceased veteran and medical
evidence regarding his
death. R. at 83-90. In a June 2009 rating decision, the VA regional office
denied the appellant’s
request to reopen her claim because it found that she had submitted no new
information that would
warrant revocation of the forfeiture decision declared against her. R. at
76-79. The appellant
2

appealed that decision. R. at 26-29, 53-75. In conjunction with her
appeal, she submitted evidence
indicating that Jessie Cruz was married to Susana Gutierrez, along with a
copy of the previously
submitted affidavit from the couple. R. at 53-75.
On September 29, 2010, the Board issued the decision here on appeal. R. at
3-11. In that
decision, the Board found that the evidence submitted since the 1977 Board
decision denying
removal of the forfeiture of benefits did not relate to the appellant’s
fraudulent conduct and thus there
was no basis on which to reopen the claim. R. at 8-9. This appeal followed.
II. ANALYSIS
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.” 38
U.S.C. § 5108. “New and material evidence” is defined as follows:
New evidence means existing evidence not previously submitted to agency
decisionmakers. 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) (2011). New and material evidence is evidence that would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist. Shade v. Shinseki, 24 Vet.App. 110, 121 (2010).
In making the determination of materiality, “the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence
is credible.” Duran v. Brown, 7 Vet.App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992)). However, the Secretary is not required “to consider the patently incredible to be credible.” Id.; see also King v. Brown, 5 Vet.App. 19, 21 (1993) (noting that the Board must not assume the credibility of evidence “when the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the competence of the person making the assertion”) (citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992)). In Shade, the Court held that the issue of reopening must be
3

confined to the subject of existence of new and material evidence alone
and does not include a separate outcome-based element. Shade, 24 Vet.App. at 121. The Court emphasized “that the phrase ‘raise a reasonable possibility of substantiating the claim’ does not create a third element for new and material evidence,” but was intended to provide “guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements.” Id. at 117.
The
Court instructed that the Board should consider whether the submitted
evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. The Court emphasized that that determination is a component of, and not a separate determination from, the question of whether submitted evidence is “new and material evidence” within the meaning of 38 C.F.R. § 3.156(a). Id.
The Board’s determination of whether a claimant has submitted new and
material evidence is generally reviewed under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See Suaviso v. Nicholson, 19 Vet.App. 532, 533-34 (2006);
Elkins v. West, 12
Vet.App. 209, 217 (1999) (en banc). ‘”A finding is “clearly erroneous”
when although there is
evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm
conviction that a mistake has been committed.'” Gilbert v. Derwinski, 1
Vet.App. 49, 52 (1990)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 39 (1948)).
The appellant first appears to argue that the Board failed to adequately
consider a document
fromtheNationalStatisticsOfficeindicatinghermaritalstatusto theveteran.
Appellant’s Brief(Br.)
at 1. Her argument is unavailing as, while the document in question is new,
it is not material. The
document indicates that the appellant and the veteran were married in
October 1949. R. at 57.
However, similar evidence reflecting that marriage was previously of
record. R. at 634. Moreover,
whether the appellant was at one time married to the veteran is not in
dispute. The issue before the
Board was whether the appellant committed fraud by her description of her
relationship with Jessie
Cruz. The document from the National Statistics Office simply does not
relate to that issue and is
therefore not material. See 38 C.F.R. § 3.156(a).
The appellant next argues that the Board failed to properly apply title 38
of the U.S. Code
and that the record generally supports her claim. Appellant’s Br. at 2.
The appellant provides no
specific legal or factual support for these assertions. Id. While the
Court is mindful that the
4

appellant is proceeding pro se, she still carries the burden of
presenting coherent arguments and of
providing adequate support for those arguments. See Mayfield v. Nicholson,
19 Vet.App. 103, 111
(2005) (noting that “every appellant must carry the general burden of
persuasion regarding
contentions of error”), rev’d 444 F.3d 1328 (Fed. Cir. 2006); Hilkert v.
West, 12 Vet.App. 145, 151
(1999) (en banc) (“An appellant bears the burden of persuasion on appeals
to this Court.”) aff’d per
curiam, 232 F.3d 908 (Fed. Cir. 2000) (table); Berger v. Brown, 10 Vet.App.
166, 169 (1997)
(“[T]he appellant . . . always bears the burden of persuasion on appeals
to this Court.”). Without
such support there is no basis for the Court to disturb the Board’s
decision. See Locklear v.
Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not
entertain underdeveloped
arguments); Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (stating that
an appellant must “plead
with some particularity the allegation of error so that the Court is able
to review and assess the
validity of the appellant’s arguments”), rev’d on other grounds sub nom.
Coker v. Peake, 310 F.
App’x 371 (Fed. Cir. 2008); Cromer v. Nicholson, 19 Vet.App. 215, 219 (
2005) (holding that the
Court will not address any argument “in the absence of the necessary
factual predicate”); Evans v.
West, 12 Vet.App. 22, 31 (1998) (noting that the Court cannot be expected
to consider “vague
assertion[s]” or “unsupported contention[s]”); U.S. VET. APP. R. 28(a)(5).

III. CONCLUSION
Uponconsiderationoftheforegoinganalysis, therecordonappeal,
andtheparties’pleadings,
the September 29, 2010, Board decision is AFFIRMED.
DATED: March 15, 2012
Copies to:
Cristina V. Umagat
VA General Counsel

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Create a free website or blog at WordPress.com.

%d bloggers like this: