Citation Nr: 1001908 Decision Date: 01/12/10 Archive Date: 01/22/10 DOCKET NO. 08-11 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether a declaration of forfeiture of eligibility for VA benefits under the provisions of 38 U.S.C.A. § 6103(a) against the appellant was proper. 2. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to the provisions of 38 U.S.C.A. § 1318. 3. Whether new and material evidence has been received to reopen service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Simone C. Krembs, Counsel INTRODUCTION The Veteran had recognized Philippine Guerilla service from August 1943 to May 1945, and had service with the regular Philippine Army from May 1945 to March 1946. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the appellant's claim for DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1318 and determined that the appellant had forfeited her eligibility to VA benefits. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of whether new and material evidence has been received to reopen service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The appellant submitted handwritten medical records dated from September 1944 to August 1978 executed by various physicians which purported to demonstrate that the Veteran had been treated for hypertension on an intermittent basis since his service with the recognized guerillas. 2. It is not clear beyond a reasonable doubt that the appellant was aware that those records were not true and correct records of treatment received between September 1944 to August 1978, and that the contents of the records were accordingly falsified. 3. The Veteran was not evaluated as being totally disabled as a result of a service-connected disability for 10 continuous years immediately preceding death, was not rated as being totally disabled continuously for a period of no less than five years immediately preceding his death, nor was he a former prisoner of war who died after September 30, 1999. CONCLUSIONS OF LAW 1. The statutory criteria for forfeiture of the appellant's rights, claims, and benefits under the laws administered by VA have not been met beyond a reasonable doubt. 38 U.S.C.A. § 6103 (West 2002); 38 C.F.R. §§ 3.901, 3.905 (2009). 2. The criteria for DIC under 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). With respect to the claim regarding whether a declaration of forfeiture of eligibility for VA benefits under the provisions of 38 U.S.C.A. § 6103(a) against the appellant was proper, the Board finds that, given the favorable disposition of the claim, a discussion regarding VA's duties to notify and assist the appellant with respect to this claim is not necessary. With respect to the claim of entitlement to DIC under 38 U.S.C.A. § 1318, the Board finds that because that claim is limited to statutory interpretation, the notice provisions are not applicable. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 5-2004 (VA not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Accordingly, the Board finds no prejudice toward the appellant in proceeding with the adjudication of her claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318. Forfeiture of Eligibility for VA Benefits 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 (except laws relating to insurance benefits). 38 U.S.C.A. § 6103(a). "Fraud" is an act committed when a person 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 laws administered by VA (except laws relating to insurance benefits). 38 C.F.R. § 3.901(a). 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. That standard of proof is much higher than the typical claims adjudication standard. The "beyond a reasonable doubt" standard is a higher standard of proof than the "clear and unmistakable evidence (obvious or manifest)" standard required to rebut the presumption of aggravation or the "clear and convincing evidence" standard required to show actual employability in reducing a rating of 100 percent. Trilles v. West, 13 Vet. App. 314 (2000); 38 C.F.R. §§ 3.306(b); 3.343(c) (2009). VA 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. Macarubbo v. Gober, 10 Vet. App. 388 (1997). Whoever knowingly makes a false or fraudulent affidavit concerning any claim for benefits under the laws administered by VA (except for insurance benefits) shall forfeit all rights, claims, and benefits under all laws administered by VA (except insurance benefits). 38 U.S.C.A. § 6103(a); 38 C.F.R. § 3.901(a). 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 this case, the record indicates that VA followed all procedural notification requirements. VA Adjudication Procedure Manual, M21- 1, Part IV, Ch. 36 (Apr. 3, 1992), and Change 135 (Apr. 6, 2001), and Change 147 (Nov. 5, 2001), and Change 192 (Feb. 26, 2004). The burden of proof is upon VA to show that forfeiture is supported by the evidence beyond a reasonable doubt. Trilles v. West, 13 Vet. App. 314 (2000). The appellant filed her initial claim for service connection for the cause of the Veteran's death in November 1991. In support of her claim, she submitted the Veteran's service records, demonstrating that the Veteran had recognized Philippine Guerilla service from August 1943 to May 1945, and had service with the regular Philippine Army from May 1945 to March 1946, and his certificate of death, demonstrating that in May 1997, he died of cardiorespiratory arrest secondary to thrombotic cerebrovascular disease. In addition, the appellant submitted a May 2002 letter from the physician attending the Veteran at the time of his death which confirmed the causes of his death, and indicated that the Veteran's treatment records were unavailable due to a fire that had occurred in July 2001. The appellant's claim was denied in a July 2002 rating decision because the evidence did not show that the causes of the Veteran's death were related to his recognized guerilla service. The appellant was notified of the decision, but failed to perfect an appeal. She applied to reopen her claim in August 2003. In support of her claim, she submitted additional copies of the Veteran's service records verifying his service with the recognized guerillas, an April 2003 letter from the National Personnel Records Center indicating that the Veteran's record did not contain any clinical or medical records, and two joint affidavits sworn by individuals attesting to having known the Veteran, and having known the Veteran to have been married to the appellant. By a December 2003 rating decision, the RO determined that new and material evidence sufficient to reopen the claim had not been received, and the application to reopen the claim was denied. In response to the denial of her claim, the appellant, in January 2004, submitted an altered copy of the Veteran's certificate of death. The altered certificate showed, in addition to the aforementioned causes, that an other significant condition contributing to death was ischemic heart disease. Along with the altered certificate of death, she submitted a statement from Cezar B. Nobleza, M.D., allegedly dated in February 1942, indicating that the Veteran had been under his medical observation for treatment of hypertension, and that the Veteran had been confined to his bed from March 1, 1942 to March 10, 1942. The appellant also submitted a September 1944 certification from Alejandro Nery Cruz, M.D., indicating that on September 8, 1944, the Veteran had been admitted for treatment for shock resulting from torture by the Japanese army. A Cranial X-ray had revealed a mild hematoma in the occipital region of his head. Finally, the appellant submitted a May 1997 report of CT examination of the Veteran's brain, which revealed a subdural hematoma in the left frontotemporoparietal region of the brain, and subdural effusion of the right frontotemporoparietal region. By a February 2004 rating decision, the RO again determined that new and material evidence sufficient to reopen the claim had not been received. In July 2004, the Appellant again applied to reopen her claim. This application was denied in a July 2004 rating decision. The appellant submitted a notice of disagreement in November 2004. In January 2005, the RO issued a rating decision denying the appellant entitlement to service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1318. In March 2005, the appellant submitted a notice of disagreement with respect to the denial of service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1318. In support of her claim, the appellant submitted a joint affidavit allegedly sworn in April 1977 by a former military comrade of the Veteran, indicating that in September 1944, the Veteran sustained a head injury as a result of enemy attack. An additional affidavit, allegedly sworn in October 1973 by two medical officers who treated the Veteran, attests to their having treated the Veteran for hypertension, in addition to his head wound, in September 1944. In April 2005, in conjunction with her substantive appeal, the appellant submitted numerous handwritten medical records, in addition to typewritten medical certificates, dated from September 1944 to August 1978, executed by various physicians which purported to demonstrate that the Veteran had been treated for hypertension on an intermittent basis since his service with the recognized guerillas, or that he had been treated for hypertension related to his military service. In June 2005, the RO forwarded the various records submitted by the appellant in support of her claim for forensic evaluation by the VA Office of the Inspector General (OIG). In a February 2006 report, the OIG reported that visual and microscopic examinations had been performed on the submitted documents, and that based on visual inspection of several documents which were signed with black toner, those documents were determined to be not original, as the presence of black toner was indicative of photocopy technology. Additionally, the dates on several of those documents predated the earliest commercially available photocopier technology. Chemical examinations were performed on the black ballpoint inks used to produce the handwritten medical documents. It was determined that one ink formulation was used to create each of the tested black ballpoint pen written entries. The black ballpoint ink was compared to black ballpoint ink formulations in the United States Secret Service International Ink Library. The black ballpoint ink used to create the records submitted by the appellant were not commercially available until 1985, postdating the purported dates of treatment. In a January 2008 Administrative Decision, the RO determined that the appellant had forfeited her eligibility to VA benefits, as a result of knowingly submitting fraudulent evidence in support of her claim. In an affidavit sworn in April 2008, the appellant swore that she believed the documents she submitted to have been originals, as they came from the files of her husband. In her April 2008 substantive appeal, the appellant indicated that the documents in controversy had been left to her by her husband, and that she believed them to be true originals. The Board is obligated to determine the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. 38 U.S.C.A. § 7104(d) (West 2002); Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App 49 (1990). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). In this case, the evidence does not establish beyond a reasonable doubt that the appellant knowingly submitted false and fraudulent evidence to VA in connection with her claim for benefits. Although the medical records and certificates which purport to demonstrate treatment of the Veteran for hypertension have been determined to be inauthentic, it is not clear beyond a reasonable doubt that, at the time the appellant submitted the records to VA, she was aware that the records and certificates were created after their purported dates and were, therefore, false and fraudulent documents. The Board accordingly concludes that the evidence does not show beyond a reasonable doubt that the appellant knowingly submitted fraudulent medical evidence in support of her claim; therefore, forfeiture of any VA benefits to which she might have been entitled under 38 U.S.C.A. § 6103 was not proper. Having determined that the forfeiture was not proper, the Board will proceed with an analysis of the appellant's entitlement to DIC pursuant to the provisions of 38 U.S.C.A. § 1318. Entitlement to DIC pursuant to 38 U.S.C.A. § 1318 Where a veteran's death is determined to not be service- connected, a surviving spouse may still be entitled to benefits. Under 38 U.S.C.A. § 1318(a) (West 2002), benefits are payable to the surviving spouse of a "deceased veteran" in the same manner as if the death were service-connected. A "deceased veteran" for purposes of this provision is a veteran who dies not as the result of the veteran's own willful misconduct, and who either was in receipt of compensation, or for any reason (including receipt of military retired pay or correction of a rating after the veteran's death based on clear and unmistakable error) was not in receipt of but would have been entitled to receive compensation, at the time of death for service-connected disabilities rated totally disabling. The service-connected disabilities must have either been continuously rated totally disabling for 10 or more years immediately preceding death or continuously rated totally disabling for at least five years from the date of the veteran's separation from service. The total rating may be schedular or based on unemployability. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22 (2009); Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003). In this case, at the time of the Veteran's death in May 1997, the Veteran had no service-connected disabilities. As such, the Veteran did not have any service-connected disabilities that were continuously rated totally disabling for 10 or more years immediately preceding death or continuously rated totally disabling for at least five years from the date of his separation from service. Therefore, the "totally disabling" requirement under 38 U.S.C.A. § 1318 and 38 C.F.R. § 3.22 has not been met. Additionally, the Veteran was not a former prisoner of war who died after September 30, 1999. As indicated above, the documents submitted by the appellant that referenced prisoner of war status were inauthentic, that is, were both false and fraudulent. Accordingly, the appellant's claim under 38 U.S.C.A. § 1318 must be denied for lack of legal merit. Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The declaration of forfeiture against the appellant under 38 U.S.C.A. § 6103 was not proper, and the appellant's appeal to remain eligible for VA benefits is granted. Dependency and Indemnity Compensation benefits under 38 U.S.C.A. § 1318 is denied. REMAND In November 2004, the appellant expressed disagreement with the July 2004 rating decision that determined that new and material evidence sufficient to reopen her claim of entitlement to service connection for the cause of the Veteran's death had not been received. The appellant has not yet been issued a statement of the case on the propriety of this decision. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the issue of whether new and material evidence has been received to reopen service connection for the cause of the Veteran's death is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) Issue a statement of the case on the issue of whether new and material evidence has been received to reopen service connection for the cause of the Veteran's death, and inform the appellant of her appeal rights. The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs