Citation Nr: 1031235 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 10-05 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION 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). This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. In that decision, the RO denied the appellant's claim for a one time payment from the Filipino Veterans Equity Compensation Fund. The basis for the denial was that the appellant had previously been found to have forfeited his rights, claims, and benefits under VA law because he knowingly assisted in the presentation of fraudulent evidence. See 38 U.S.C.A. § 6103(a) (West 2002). As discussed below, the finding of fraud was based on two affidavits submitted in support of a prior claim that were found to be fraudulent based in part on subsequent recantation by the affiants. After the February 2009 denial of the claim and prior to the December 2009 statement of the case (SOC) the appellant submitted a July 2004 affidavit from one of the affiants essentially recanting his prior recantation. The RO listed this evidence in the SOC but did not discuss it. This matter is referred to the RO for appropriate consideration. FINDING OF FACT In June 2005, the Compensation and Pension Service found that the appellant forfeited his rights claims and benefits under VA law based on fraud, a finding that is still in effect. CONCLUSION OF LAW Entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund is precluded by the prior determination of fraud. 38 U.S.C.A. § 6103(a) (West 2002). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). This is such a case. As discussed below, the facts are not in dispute; instead, resolution of the application is wholly dependent on interpretation of the applicable laws and regulations pertaining to forfeiture determinations. The VCAA is therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5- 2004 (June 23, 2004). In August 1997, the Veteran was granted service connection for multiple disabilities, the RO having determined that he was legally entitled to VA benefits based on his service in the Philippine Commonwealth Army and as a prisoner of war (POW) from April 10, 1942 to July 15, 1942 at Camp O'Donnell, Carpas, Tarlac. In July 2004, in the course of the appellant's claim for increased ratings for his service-connected disabilities, the RO found that the evidence warranted submission of the Veteran for consideration of forfeiture for fraud under the provisions of 38 U.S.C.A. § 6103(a). Pursuant to that statute (formerly 38 U.S.C.A. § 3503(a)), any party who knowingly makes a false or fraudulent affidavit, declaration, certificate or statement concerning any claim for benefits under any of the laws administered by the Secretary of the Department of Veterans Affairs shall forfeit all rights, claims, and benefits under all laws administered by VA (except laws pertaining to insurance benefits). The RO found that the appellant had submitted affidavits by "T.A" and "F.C." that he knew contained false information regarding their purported observations of him at a prisoner of war camp. The RO therefore recommended forfeiture based on fraud committed by the appellant. In January 2005, the RO issued a final administrative decision finding that the evidence was sufficient to warrant submission of the appellant's case to the Compensation and Pension Service for consideration of forfeiture for fraud. In June 2005, the Compensation and Pension Service held that the appellant had forfeited all rights, claims, and benefits to which he might otherwise be entitled under the law administered by VA (except laws pertaining to insurance benefits). The appellant was notified of this decision in a June 2005 letter from the Director of the Compensation and Pension Service, but he did not appeal. Therefore, this denial became final, and it is still in effect. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The Compensation and Pension Service finding was based on the false affidavits submitted by the appellant. In March 2009, the appellant applied for compensation under the recently enacted American Recovery and Reinvestment Act, under which a new one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund." American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Section 1002 (d) contains eligibility requirements similar to those applicable to claims for other benefits under VA law, i.e., service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, or service in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538), as well as discharge under conditions other than dishonorable. See also 38 U.S.C.A. § 107(a) (West 2002); 38 C.F.R. § 3.40 (2009). Section 1002(j)(2) of the new law also provides that VA will administer its provisions in a manner consistent with VA law except to the extent otherwise provided in the statute. The appellant is seeking a benefit other than those which he was seeking when it was found he committed fraud warranting forfeiture of his VA benefits. However, he is precluded from receiving these benefits by the prior determination of forfeiture based on fraud. See 38 U.S.C.A. § 6103(a). The appellant asked in his September 2009 notice of disagreement that VA "pardon [his] wrongdoing." That is not, however, a valid basis for overturning a finding of fraud under VA law. The new statute provides that VA will administer its provisions in a manner consistent with VA law. VA law precludes the Veteran from receiving VA benefits based on the finding of forfeiture based on fraud. Thus, the appellant is precluded as a matter of law from receiving a one time payment from the Filipino Veterans Equity Compensation Fund, and his claim for this benefit must therefore be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). To the extent that the Veteran seeks to overturn the prior finding of fraud with new and material evidence to include the affidavit of "T.A." recanting his prior recantation, that matter is referred to the RO for appropriate consideration. See Trilles v. West, 13 Vet. App. 314, 322 (2000) (when a claimant attempts to have forfeited benefits restored, he is attempting to reopen a claim for revocation of forfeiture, and that the action is similar to reopening of disallowed claims for VA benefits under 38 U.S.C.A. § 5108). ORDER Entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs