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