Citation Nr: 0432296 Decision Date: 12/06/04 Archive Date: 12/15/04 DOCKET NO. 02-03 368A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the forfeiture of all rights and benefits invoked against the appellant under Title 38, United States Code, was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The appellant had recognized service during World War II. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the Director of the Compensation and Pension Service, Department of Veterans Affairs (VA), who determined in March 2001 that the appellant had forfeited all rights, claims and benefits under the law administered by VA, as provided by title 38, United States Code. The VA Regional Office (RO) in Manilla, Philippines currently has jurisdiction over the appellant's claims folder. This matter was previously before the Board in November 2003 at which time it was remanded to the RO for further development. The appellant was scheduled to attend a Board hearing at the RO in November 2002 pursuant to his request for such a hearing; however, he failed to report to the hearing. FINDINGS OF FACT 1. The appellant was a member of the Japanese sponsored and controlled Bureau of the Constabulary from January 1943 to August 1944. 2. The appellant, on his VA Form 21-4169, Supplemental to VA Forms 21-526, 21-534 and 21-535 (For Philippine Claims), knowingly stated that he was not a member of any pro- Japanese, pro-German or anti-American-Filipino organization, including the Bureau of the Constabulary. CONCLUSION OF LAW The appellant knowingly made false statements and certifications regarding the assistance he rendered to an enemy of the United States in his claim for benefits under the laws administered by VA, and thereby forfeited all rights, claims and benefits under all laws administered by VA. 38 U.S.C.A. §§ 6103(a), 6104 (West 2002); 38 C.F.R. §§ 3.901, 3.902 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Assuming that VCAA applies to a forfeiture case, the Board proceeds with the following VCAA discussion. The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the RO furnished VCAA notice to the appellant regarding this issue in March 2004, which was after the March 2001 adverse decision. Because the VCAA notice in this case was not provided to the appellant prior to the RO decision from which he appeals, it can be argued that the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. While the Court did not address whether, and, if so, how, the Secretary can properly cure a defect in the timing of the notice, it did leave open the possibility that notice error of this kind may be non-prejudicial to a claimant. In this respect, all the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). VA has fulfilled its duty to notify the appellant in this case. In the March 2004 letter, as well as the March 2002 statement of the case and August 2004 supplemental statement of the case, the RO informed the appellant of the applicable laws and regulations, including applicable provisions of the VCAA, the evidence needed to substantiate the claim, and which party was responsible for obtaining the evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the March 2004 letter, VA informed the appellant that it would obtain the available records in the custody of federal departments and agencies and that he should send competent evidence in support of his claim. The Board also notes that the March 2004 letter expressly notified the appellant that he should submit any pertinent evidence in his possession. The requirements of 38 C.F.R. § 3.159(b)(1) have therefore been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The Board also finds that all necessary assistance has been provided to the appellant. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate his claims, including obtaining pertinent service personnel records. The appellant has not indicated that any additional pertinent service information. In fact, the appellant indicated in writing in August 2004 that he had no additional evidence to submit and requested that the appeal be immediately certified to the Board. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claim under consideration and that adjudication of the claim at this juncture, without directing or accomplishing any additional notification and or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Factual Background In March 1989, the appellant submitted an Application for Compensation or Pension (VA 21-526) claiming entitlement to compensation for multiple disabilities. He indicated on this form that he had been held as a prisoner of war in the Philippines beginning on April 26, 1942. In June 1989, the RO received a VA Form 21-4169, Supplemental to VA Forms 21-526, 21-534, and 21-535 (For Philippine Claims) from the appellant. As part of this Form, the appellant checked the box "No" regarding whether he was a member of any Pro-Japanese, Pro-German, or Anti-American- Filipino organizations. Moreover, he checked the box "No" regarding whether he had belonged to certain specified organizations during the Japanese occupation, including the Bureau of Constabulary (BC). Finally, he signed his name to the bottom of this form, under the following certification: "I hereby certify that I have read all the questions and answers in this application, and that the answers to all the above questions are true and complete to the best of my knowledge and belief and that I have submitted all available information and evidence in support of this application, with full knowledge of the penalty provided for making a false statement as to a material fact in such application and knowing that if any statement is false, I may forfeit all rights to benefits from the United States Department of Veterans Affairs." Attached to the VA Form 21-4169 were classified materials from the Washington National Records Center (WNRC) and the Manila Loyalty Development Unit showing that the appellant was a member of the Bureau of Constabulary. These records include a monthly roster of the BC Negros Occidental showing that the appellant was appointed on March 7, 1943, and was an NCP. In August 1989, the RO received the appellant's service personnel records including a copy of his February 1946 Affidavit of Philippine Army Personnel that shows he served in the Japanese sponsored BC from January 21, 1943, to August 3 1944, and received pay in the amount of P340.00. In his own words, the appellant stated the following: "I was drafted into the Jap sponsored BC in the concentration camp by the Japs Authorities against our will that prompted my release. I underwent training and then assigned to 4th Co. in Bacolod City to keep peace and order-I finally made my escaped later." The United States Army Reserve Personnel Center (ARPERCEN) certified in December 1989 that the appellant was in a beleaguered status from December 30, 1941, to May 5, 1942. He was noted to be missing from May 6, 1942 to May 28, 1942, and was a prisoner of war (POW) from May 29, 1942, to January 5, 1943. The appellant had no casualty status from January 6, 1943, to April 26, 1945, and on April 26, 1945, his status under the Missing Persons Act was terminated. The appellant returned to service in the regular Philippine Army on April 27, 1945, serving until June 30, 1946. The ARPERCEN further indicated that, from January 6, 1943, to January 20, 1943, the appellant had alleged POW status, which was not supported by the evidence, and from January 21, 1943, to August 3, 1944, he was with the Japanese BC. Also, from August 4, 1944, to April 26, 1945, the appellant engaged in civilian pursuits and was not engaged in the active military. For the period he was missing, from May 6, 1942, to May 28, 1942, it was determined that his unit was awaiting formal surrender. The ARPERCEN concluded that the appellant had no recognized guerilla service. In a rating decision dated in March 2000, the RO granted service connection for traumatic degenerative joint disease of the lumbar spine and depressive disorder, and assigned each disability a 10 percent evaluation. The appellant explains in an August 2000 statement that while still a prisoner he was transferred to an elementary school where he was told he would be trained as BC and was informed what BC was. He said he was not in a position to argue or refuse and was at the hands of the enemy, so he obliged them. He added that he was never tried in any Court, including as a civilian. In October 2000, a VA Field Examination was conducted for the purpose of gathering sufficient evidence to determine the appellant's activities during the Japanese occupation of the Philippines. The Field Examination report indicates that the appellant was unable to remember very much and he stated on many occasions that he was old and could not think that far back. His statement did not lead to any affiants. He maintained that he was an orderly and ran errands for the Japanese and neither him nor the others in his BC unit were ever armed. In November 2000, the RO recommended that the appellant be charged with possible violation of 38 U.S.C.A. §§ 6103 and 6104 based on the proposed decision to submit him for consideration of forfeiture for aiding the enemy and for fraud. Among other things, the RO noted that classified materials from the WNRC showed that the appellant was a member of the Japanese sponsored and controlled Bureau of Constabulary from January 21, 1943, to August 3, 1944. In notifying the appellant of the proposed decision, the RO informed him that it was an acknowledged fact that the BC was created primarily to assist the Japanese in, and was used for, apprehending guerillas and guerilla suspects and in suppressing guerilla resistance activities in furtherance of the Japanese war effort against the United States and its allies. The RO also informed the appellant that he initially denied having been a member of the BC, but that classified materials from the WNRC and the Manila Loyalty Development Unit showed otherwise. In a December 2000 statement, the appellant said that he finally escaped from his imprisonment by the enemy and after the American liberations, he immediately reported to the military base. He remarked that he had never been tried, nor is there any evidence from any Court, that he had given any assistance to the Japanese forces in apprehending guerillas and war efforts against the United States or its allies. By a January 2001 decision, the RO concluded that the evidence of record was sufficient to warrant submission for consideration for forfeiture for fraud. Thereafter, in March 2001, the VA Director of the Compensation and Pension Service determined that the appellant had forfeited all rights, claims and benefits under the laws administered by VA, as provided by title 38, United States Code, section 6103(a). The appellant's spouse submitted a statement in August 2001 stating that it was unfair that the appellant was "brandished as collaborating with the Japanese." She said that it was wartime and under the enemy "one is under pressure." She attested to the appellant's innocence. In an April 2002 statement, the appellant said that he was under pressure under the Japanese and that whatever they wanted him to do he would do or else be beheaded or bayoneted. He said he was not a traitor to his country or the United States. He said he had been an orderly and only ran errands in a hospital. He denied that he ever fought alongside the Japanese or performed any patrol duty. The appellant further explained in a May 2004 statement that after eight months of imprisonment by the Japanese, he was told they were being released. He said that shortly thereafter he was ordered to ride a bus and was taken to a school compound where he was told he would be trained as a soldier and was forced to sign documents that he did not understand. He said he and the others were sick to their stomachs at the sight of a Japanese soldier "sporting a sharp-bladed Samurai". He added that he did not remember participating in any program or ceremony, but did participate in a farewell ceremony on the last day at the training school and wore a uniform. He said he only wore a uniform one other time -upon his arrival to his first assignment as an orderly where he paid respects to a Japanese official. He denied participating in any patrol duty. In May 2004, the RO received two statements from acquaintances of the appellant. In one statement, the attestant said that she had never seen the appellant in any army uniform nor heard that he belonged to a Japanese Constabulary. In the other statement, the attestant said that he had seen the appellant outside a BC Headquarters in civilian status and that the appellant told him that he had been assigned there as an orderly after his release from imprisonment. He also said that the appellant told him that he was going to escape as soon as he had the opportunity. III. Analysis Any person who knowingly makes or causes to be made or conspires, combines, aids, or assists in, agrees to, arranges for, or in any way procures the making or presentation of a false or fraudulent affidavit, declaration, certificate, statement, voucher, or paper, concerning any claim for benefits under any of the laws administered by the Secretary, shall forfeit all rights, claims, and benefits under all laws administered by the Secretary. Fraud is defined as an act committed in perpetration of one of the above-listed actions. 38 U.S.C.A. § 6103(a) (West 2002); 38 C.F.R. § 3.901 (2004). The language of section 6103 plainly states that a person who commits fraud in connection with his or her claim or award of benefits, loses all rights, claims, and benefits. See also Trilles v. West, 13 Vet. App. 314, 322 (2000). Under 38 U.S.C.A. § 6104(a), any person shown by evidence satisfactory to the Secretary of the VA 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 or future gratuitous benefits under laws administered by the Secretary. See also 38 C.F.R. § 3.902. A forfeiture action is an adversarial process initiated by VA. Such an adversarial process requires the application of a "beyond a reasonable doubt standard" to declare a forfeiture. See Trilles v. West, 13 Vet. App. 314, 320- 22, 326-27 (2000). Such a standard of proof is much higher than the typical claims adjudication standard. The Board must determine whether the evidence establishes "beyond a reasonable doubt" that the appellant knowingly made or caused to be made false or fraudulent statements concerning a claim for benefits. The determination of whether the appellant knowingly submitted false or fraudulent evidence to VA is a question of fact. See Macarubbo v. Gober, 10 Vet. App. 388 (1997). It should also be noted that forfeiture will not be declared until an individual has been notified by VA of the right to present a defense and notice of the specific charges, a detailed statement of the evidence supporting the charges, citation and discussion of the applicable statute, the right to submit a statement or evidence within 60 days either to rebut or explain, and the right to a hearing within 60 days. 38 C.F.R. § 3.905(b). In the present case, the record shows that the appellant was duly notified of the proposed forfeiture action by letter dated in November 2000. The letter clearly informed the appellant of his right to submit a response within the 60-day period as well as his right to a hearing. The Board finds that this procedural due process requirement was met in this case. After reviewing the evidence, the Board also finds that the record shows, beyond a reasonable doubt, that the appellant knowingly and willingly attempted to conceal from VA his involvement with the Bureau of Constabulary. When he filed his claim seeking service connection for multiple medical conditions, he knowingly made false statements regarding any such involvement. Specifically, when asked on the VA Form 21-4169 whether he had had any involvement with any pro- Japanese or anti-American organizations, the appellant stated that he had not. Moreover, when asked whether he had belonged to the Bureau of Constabulary or the Philippine Constabulary, the appellant again stated that he had not. By signing the VA Form 21-4169, he asserted that all of these statements were true. However, his January 1946 Affidavit of Philippine Army Personnel indicates that he had worked for the Japanese Bureau of Constabulary. The various documents from WNRC also certified that the appellant worked for the Japanese in this capacity during World War II. Moreover, in response to the RO's April 2000 and July 2000 correspondence about his Bureau membership, and in all subsequent statements and testimony, the appellant acknowledged that he was a member of the Constabulary despite his statements to the contrary on the VA Form 21-4169. Based on the foregoing, the Board finds that the appellant knowingly made false statements in a claim for benefits under the laws administered by VA. The Board acknowledges that the appellant has contended in various statements that he was forced to join the Bureau of Constabulary because of intimidation/threats to his life. Nevertheless, this does not change the fact that he knowingly made false statements when specifically asked about such membership on the VA Form 21- 4169, and that this Form made it clear that such false statements could result in the forfeiture of all benefits. Moreover, given the fact that he made this false statement, his credibility regarding the circumstances under which he joined the Bureau is greatly diminished. Additionally, the various documents from the WNRC contradict the appellant's assertions regarding the circumstances of his membership with the Bureau. Inasmuch as the appellant knowingly made false statements and certifications regarding the assistance he rendered to an enemy of the United States in his claim for benefits under the laws administered by VA, he forfeited all rights, claims, and benefits under all laws administered by VA. 38 U.S.C.A. § 6103(a); 38 C.F.R. § 3.901. As an additional matter, the Board notes that by virtue of his service with the Bureau of the Constabulary, the appellant rendered assistance to an enemy of the United States during World War II even if such assistance did not include carrying a gun or patrol duty. The various records from the WRNC supports this finding. Consequently, by this service he forfeited all accrued or future gratuitous benefits under laws administrated by VA pursuant to 38 U.S.C.A. § 6104(a); 38 C.F.R. § 3.902. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.). In summary, the Board concludes that the evidence demonstrates beyond a reasonable doubt that the appellant knowingly and fraudulently made false statements and certifications regarding the assistance he rendered to an enemy of the United States in his claim for benefits under the laws administered by VA. Forfeiture of all rights and benefits under title 38, United States Code under such circumstances is proper. See 38 U.S.C.A. §§ 6103, 6104; 38 C.F.R. §§ 3.901, 3.902; Trilles, supra. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2