Russ v. McDonough
| Decision Date | 26 May 2021 |
| Docket Number | 20-2786 |
| Parties | Peter Terence Russ, III, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Peter Terence Russ, III VA General Counsel
Before LAURER, Judge.
Self-represented appellant Peter T. Russ, III, appeals a February 20, 2020 Board of Veterans' Appeals (Board) decision that declined to reopen his claim for entitlement to education benefits under 38 U.S.C. chapter 33 (Post-9/11 GI Bill) because he did not submit new and material evidence to reopen a July 14 2014, decision.
Appellant argues that the Board erred in finding that he did not submit evidence showing that he had enough qualifying active duty service for Post-9/11 GI Bill purposes after September 10, 2001. He asserts that his premobilization training time with the Army National Guard and active duty for training time with the Navy Reserve should be included in his qualifying active duty service and that his statements regarding those periods should be sufficient to reopen his claim. The Secretary counters that the Board was bound by the Department of Defense (DoD) determination so that the evidence submitted by the veteran could not raise the reasonable possibility of substantiating the claim. The Court agrees with the Secretary and will affirm.
The Post-9/11 GI Bill provides education assistance for members of the Armed Forces based on active duty service after September 10, 2001.[1] A veteran who served on active duty for at least 90 aggregate days after September 10, 2001, may be eligible for Post-9/11 GI Bill educational benefits.[2] To establish service in, and character of discharge from, the military, VA "may accept evidence of service" submitted by a claimant that (1) is issued by the service department; (2) contains needed information on length, time, and character of service; and (3) in the opinion of VA, "is genuine and the information contained in it is accurate," or VA may request verification of service from the service department.[3] Service department findings are final and binding on VA for establishing entitlement to benefits.[4]
If a veteran does not file a timely Notice of Disagreement (NOD) after receiving a VA decision, the decision becomes final.[5] VA will reopen a claim from a final decision if the veteran presents new and material evidence.[6] Deciding whether evidence is "new" differs from deciding whether the evidence is "material."[7] Evidence is "new" if it was not in the record before. What's more, new evidence cannot be redundant or cumulative of evidence that was already in the record "at the time of the last prior final denial of the claim."[8] Evidence is "material" if, on its own or with other evidence, it "relates to an unestablished fact necessary" to prove the claim.[9] At bottom, new and material evidence cannot be the same evidence that was before VA previously and must raise "a reasonable possibility of substantiating the claim."[10]
Like other findings of fact, the Court reviews the Board's finding that appellant has not submitted new and material evidence under the "clearly erroneous" standard.[11] "A factual 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.'" [12]That said, the Board must also support its determination with adequate reasons or bases that help appellant to understand the precise basis for its decision and facilitate this Court's review.[13]
Appellant does not dispute that the July 2014 regional office (RO) decision became final and that the issue on appeal is whether he submitted new and material evidence to reopen his claim for Post-9/11 GI Bill educational benefits. His dispute rests with how the Board considered the evidence of his time in service. As the issue on appeal is reopening the July 2014 rating decision, we look first to that decision. In the July 2014 decision, the RO found that appellant had insufficient service after September 20, 2001, to qualify for Post-9/11 GI Bill benefits based on information DoD provided and appellant submitted.[14] Before this decision, DoD issued a report showing that appellant's only qualifying period of service for chapter 33 benefits was from March 3, 1988, to October 22, 1988, and that he had no qualifying service after September 2001.[15] As stated, the RO was bound by this DoD determination.[16]
In the decision on appeal, the Board found that because appellant did not submit a DoD determination that he had enough qualifying active duty service for Post-9/11 GI Bill benefits, he did not submit new and material evidence to reopen his claim.[17] As the Board noted, the evidence appellant submitted after the July 2014 RO decision-statements showing that he believed he had qualifying service-was duplicative of evidence of record at the time of the July 2014 decision.[18]Appellant does not dispute that he did not submit a DoD determination or that the statements he submitted were cumulative of what was of record in July 2014. While appellant is entitled to both a sympathetic reading of his informal brief and a liberal construction of his arguments, [19] he still carries the burden of establishing error in the decision on appeal.[20] As the Board succinctly put it, "[w]hat still has not been shown is that the DoD has determined that [appellant] had sufficient active duty service after September 10, 2001, for the purposes of the Post-9/11 GI Bill."[21] Without such a determination, the Board correctly found that appellant had not submitted new and material evidence sufficient to reopen his claim. The Court sees no error in the Board declining to reopen a claim for entitlement to Post-9/11 GI Bill benefits, and the Court will affirm.
For these reasons, the Court AFFIRMS the Board's February 20, 2020, decision.
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Notes:
[1] 38 U.S.C. § 3311; 38 C.F.R § 21.9505 (2020).
[4] 38 C.F.R. § 3.203(a); Spencer v. West, 13 Vet.App. 376, 380 (2000); Duro v. Derwinski, 2 Vet.App. 530, 532 (1992).
[5] 38 U.S.C. § 7105(c).
[7] 38 C.F.R. § 3.156(a).
[8] 38 C.F.R. § 3.156(a).
[9] 38 C.F.R. § 3.156(a).
[11] See King v. Shinseki, 23 Vet.App. 464, 467 (2010); see also 38 U.S.C. § 7261(a)(4).
[12] Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 33 U.S. 364, 395 (1948)).
[14] Record (R.) at 925.
[17] R. at 10. The Court notes that in an August 2018 determination, DoD reiterated that appellant lacked the requisite qualifying service. See R. at 1155.
[18] Id.
[20] Shinseki v. Sanders, 556 U.S. 396, 409 (2009); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).
[21] R. at 10; 38 U.S.C. §...
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