Citation Nr: 1106502 Decision Date: 02/16/11 Archive Date: 02/28/11 DOCKET NO. 04-16 697A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether an overpayment of VA educational assistance benefits in the calculated amount of $8,427.40 was properly created. REPRESENTATION Veteran represented by: Donald C. Hill, Attorney ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Muskogee, Oklahoma, which found that an overpayment had been created for the Veteran in the calculated amount of $8,427.70. The Veteran appealed the validity of this debt and requested a waiver. In August 2004, the Committee on Waivers and Compromises (Committee) of the Muskogee RO denied the Veteran's request for a waiver of this debt. The Committee determined that the Veteran had acted in bad faith in the creation of this debt, which precluded consideration of a waiver of recovery of his debt. Neither the Veteran nor his attorney subsequently expressed disagreement regarding the denial of a waiver. Instead, the Veteran's attorney continued to argue that the debt was not valid. FINDINGS OF FACT 1. The Veteran was enrolled in a program of education at Ramon Magsaysay Technological University (RMTU) to achieve a Bachelor degree in Agricultural Technology. 2. For the period from November 4, 2002, through June 6, 2003, the Veteran received educational assistance benefits administered in the amount of 8,427.40 based on his enrollment at RMTU. 3. Fraud investigations conducted by the Manila RO and the VA Office of Inspector General in San Francisco determined that the Veteran was a participant in a fraud scheme perpetuated by 60 Veterans enrolled at RMTU, solely for the purpose of collecting VA educational assistance benefits, which included the failure to attend a sufficient number of classes. 4. The Veteran was paid for courses that he did not attend. 5. The charged indebtedness in the amount of $8,427.40 was validly created. CONCLUSION OF LAW The debt created by overpayment of educational assistance benefits in the amount of $8,427.40 is valid. 38 U.S.C. §§ 3002, 3011 (West 2002); 38 C.F.R. §§ 21.7020, 21.7070, 21.7144, 21.7153 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters VA's Duties to Notify and Assist Initially, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West. 2002 & Supp. 2010)), is not applicable to cases involving overpayment of indebtedness. See Barger v. Principi, 16 Vet. App. 132, 138 (2002); see also Lueras v. Principi, 18 Vet. App. 435 (2004). Notwithstanding the fact that the VCAA is not controlling in these matters, the Board observes that the RO has explained to the Veteran the bases for finding that the debt was valid. It also afforded him a fair opportunity to present arguments and evidence in support of his challenge to the validity of the overpayment. Finally, the Board afforded the Veteran an opportunity to testify at a hearing which he chose to cancel. In short, the Board concludes from that review that the requirements for the fair development of the appeal have been met in this case. See 38 C.F.R. § 1.911(c) (2010). See also Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) ("VA's . . . 'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim."); Counts v. Brown, 6 Vet. App. 473, 478- 79 (1994). Substantial Compliance with Prior Remand(s) This appeal was previously remanded in September 2006 for the purpose of fulfilling the Veteran's request for a personal hearing before a member of the Board. Such hearing was eventually scheduled for July 2009, but, in June 2009, the Veteran's attorney indicated that the Veteran no longer desired a hearing. See E-mail from Veteran's Attorney to Manila RO Personnel dated June 17, 2009. The Veteran's request for a hearing before a member of the Board is now considered withdrawn. See 38 C.F.R. § 20.702(e) (2010). This appeal was also remanded in May 2010 for the purpose of associating additional documentation with the claims file. Such documentation was obtained and the RO readjudicated the case with consideration of this additional evidence. Under these circumstances, the Board finds that there was substantial compliance with its remands; thus, it may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). Request for a Consolidated Appeal As will be discussed in greater detail below, the RO's finding that the Veteran owed a debt of $8,427.40 is the result of investigations conducted by the RO in Manila, Philippines, and subsequently the VA Office of Inspector General (OIG) in San Francisco, California, of the enrollment of 60 veterans at RMTU in the Philippines. As a result of these investigations, both the Manila RO and the OIG in San Francisco determined that these 60 veterans were not regularly attending classes, but were, instead, receiving course credit in return for buying supplies and other 'gifts' for the school and for individual instructors. The RO in Muskogee, Oklahoma, which has jurisdiction over claims involving educational assistance, subsequently advised each of the 60 veterans that overpayments had been created as a result of these findings, including the overpayment of $8,427.40 that is the subject of this decision. The record reflects that the Veteran's attorney, Donald Hill, is also representing at least twenty-nine other veterans who were found to have overpayments as a result of this investigation, and Mr. Hill has asked on several occasions to have all thirty claims consolidated in a manner similar to class action lawsuits. The Board has no authority to consolidate appeals in this manner, and, in fact, each individual case must be considered by a Veterans Law Judge in regular order. 38 U.S.C.A. § 7107 (West 2002). Mr. Hill has been advised of this fact in several letters from the Principal Deputy Vice Chairman of the Board, and the Board reiterates this statutory requirement herein. Accordingly, this decision addresses only the appeal of the Veteran listed on the title page. Privacy Issues The Board also notes that, on numerous occasions, Mr. Hill has made single submissions of evidence and argument on behalf of all thirty veterans that he represents. These submissions included protected information specific to individual veterans, such as VA claims numbers and social security numbers. Mr. Hill was asked by the Principal Deputy Vice Chairman of the Board in several letters to stop making such submissions, as they placed the Board at risk of violating the Privacy Act, 5 U.S.C. § 552a, and VA regulations prohibiting disclosure of personal information to persons other than a claimant and his representative. The Board takes seriously the requirements of the Privacy Act, 5 U.S.C. § 552a, and the responsibility of VA to protect the personal information of all veterans and their dependents. In the instant case, the Board and RO personnel have redacted personal information for those veterans other than the Veteran including in Mr. Hill's submissions. Although Mr. Hill has obtained all investigation records from the RO, he has continued to express frustration in that the names of individuals interviewed at RMTU remain redacted in the documents he received. As explained in an April 2005 letter from the Muskogee RO, the names of the individuals were withheld under exemptions set forth under 5 U.S.C.A. § 552(b)(3) (West 2002) and 38 U.S.C. § 5701(a), (f) (2010), which bars disclosure of their names and addresses. The RO also indicated that the names and job titles of witnesses involved in the investigation were withheld under exemptions set forth in 5 U.S.C. § 552(b)(7), and that VA does not generally disclose the names of witnesses involved in an investigation. See 38 C.F.R. § 1.554 (2010). The RO advised Mr. Hill that, if he disagreed with its decision to provide only redacted copies of these documents, he was free to appeal the matter to the VA Office of the General Counsel. He was provided appropriate contact information for that office. The Board believes that, for the purposes of this appeal, the Veteran is not prejudiced by VA's decision to provide only redacted copies, as he and Mr. Hill are well aware that the individuals interviewed during the course of the investigation included staff members, faculty, and students of RMTU. There was nothing to prevent Mr. Hill from obtaining lay statements from as many individuals at RMTU as he saw fit, on his own initiative, and to submit those statements in support of the Veteran's claim. Subpoena Requests Mr. Hill has also specifically requested that VA subpoena all individuals involved in the investigation, including both witnesses and VA employees, so that he may question them, and he has also objected to VA's reliance on the interviews conducted at RMTU, asserting that they amount to 'hearsay evidence.' However, as noted in Flynn v. Brown, 6 Vet. App. 500, 503 (1994), the VA benefits claims system does not include such adversarial concepts as cross examination, best evidence rule, or hearsay evidence exclusion. See also Manio v. Derwinski, 1 Vet. App. 140 (1991). Certainly, the Board has a responsibility to weigh the credibility and probative value of testimony provided by the students and faculty at RMTU, just as it does any evidence provided by the Veteran that is the subject of this decision, and the actual knowledge of the person providing the statement is an important factor in assessing probative value. The Board recognizes that, under 38 U.S.C. § 5711(a) (West 2002), VA has the authority to "(1) issue subpoenas for and compel the attendance of witnesses within a radius of 100 miles from the place of hearing . . .[and] (4) aid claimants in the preparation and presentation of claims." This authority is discretionary. Moreover, in 38 C.F.R. § 20.711 (2010), the Secretary has defined the scope of this subpoena power to include compelling the attendance of witnesses within a radius of 100 miles from the place of hearing, and to aid in the production of "tangible evidence." The regulation does not contemplate issuing subpoenas to allow witnesses to be questioned outside of the context of a personal hearing, and even then, the individual must reside within a 100 mile radius of the hearing. Furthermore, the regulation specifically provides that a subpoena will not be issued to compel the attendance of VA adjudicatory personnel. See 38 C.F.R. § 20.711(a). In this instance, Mr. Hill has clearly requested subpoenas far outside the scope of the situations contemplated by the applicable regulation, and his request is denied. II. Factual Background The record reflects that in August 2002, the Veteran applied for VA educational assistance benefits under the provisions of Chapter 30 for a program of education at RMTU. The Veteran received basic educational assistance benefits under the provisions of Chapter 30 for the semesters that he reported being enrolled at RMTU between the period of November 4, 2002, through June 6, 2003, and the RO calculated the total amount of assistance benefits administered during this period as $8,427.40. On October 23, 2002, the RO in Manila conducted a routine on- site Education Compliance Survey at RMTU. The audit examined school records associated with ten percent of the VA student population. Of the six records examined there were discrepancies found in all records. The primary contact at RMTU for this survey was the Registrar Clerk. She made available the records of the randomly selected students, which consisted of individual envelopes for each student containing personal interview forms, immigration papers, Certificates of Honorable Discharge, and records from previous or secondary schools. No other documents such as school curriculum, enrollment forms, or adding/dropping of subject forms were found inside. In the October 2002 Education Compliance Survey Report, it was determined that RMTU had failed to maintain accurate or complete records of enrollment for VA beneficiaries-students, and that significant discrepancies were found in the records that were reviewed. For example, some students had no addresses listed other than P.O. Box addresses, and others had addresses at locations of such distance that it raised questions as to regular attendance at any of the campuses of RMTU. In addition, an Occupational Internship Program (OIP) and a Practicum were allowed to be taken in one semester, instead of the two semesters required by the curriculum. In view of the discrepancies, it was noted that it may be necessary to conduct a more extensive compliance survey at a later date, including class checks to monitor actual class attendance of the students. In January 2003, the president of the university wrote that in the OIP class projects the VA students were "the ones supervising the activities in their projects with the regular students." Thereafter, in February 2003, the RO in Manila conducted a more extensive Education Compliance Survey at RMTU in which the records of all VA beneficiary students were reviewed. The survey began at the San Marcelino Campus by interviewing the Chancellor of RMTU, who reported that the veterans had established their own school club on campus called the U.S. Veteran Students Organization. He indicated that they were allowed to have their own "Vet-Park" inside the campus where they often met, and that they had donated several garbage bins located throughout the campus. In reviewing the records, significant discrepancies were found, such as the following: the absence of final grades for certain courses or for entire semesters; different signatures or penmanship appearing on certificates of registration (the staff of the university reported that sometimes students' wives or classmates filled out the forms on their behalf); and indications that some students received credits consistent with only part- time enrollment even though they were receiving VA benefits for full-time enrollment. Discrepancies were found in all sixty VA students' records. As a result of these findings, the Manila RO subsequently conducted a field investigation, which involved eleven Manila employees, including 8 field investigators, the head of the Field Section, and two Educational Compliance Survey Specialists (ECSS's). From May 10, 2003, to May 15, 2003, they interviewed thirty-nine individuals, including RMTU administration officials, professors, VA students, and non-VA students. Depositions from various professors and administration officials confirmed that the VA students donated supplies to the school and to their instructors, and also paid for various class projects. The Chancellor of the San Marcelino Campus indicated that the VA students had donated money to their school, and that fifty percent of this had been distributed to teachers as "incentive" awards. Various instructors and non-VA students also indicated that the VA students were not required to actually attend classes, and some non-VA students complained of this fact, indicating that they would be penalized for not attending, while the VA students were still given passing grades in return for their donations. One instructor stated that his class consisted of two parts, the lecture and the laboratory; the laboratory was the longer part, and consisted of actual farming activities. This instructor stated that "only the non-VA students were required to attend the laboratory activities. The VA students were exempted." He went on to state that he felt uncomfortable giving them instructions, due to their age and status. When asked why he was giving the VA students special treatment, he said that with their age and status they would not use this in the future or would not benefit much from it. In some laboratory exercises they provided needed materials; they contributed to the expenses to defray the purchase of the materials, which were used by the younger students, who gave the VA students a portion of the fruits. He said that the laboratory portion was assessed by the instructor, who "personally make my own appraisal based on their support of financial contribution for the success of the project." In that class, 60 percent of the grade was based on the laboratory portion, which they did not attend. Another instructor, explaining why there were no records of the VA students' examinations available, stated that the examination reports were returned to the non-VA students, but not to the VA students, who were not interested in their results, as long as they passed, so the examinations had been thrown away. The VA students financed the building of pen, feeding, and slaughtering areas, as well as purchasing the animals and other supplies. One instructor stated, "The non-VA students are the one[s] who do the labor and actual activities the farm. The monetary contribution given by the VA students is a substitute or as a factor of dispense [sic] their requirements for the actual activities in the farm." A physical education instructor stated that in lieu of class attendance, the VA students were just required to submit "projects," which were in the form of sports equipment, such as balls. "Submission of any of these sports equipment is enough to pass my subject," he said. He stated that the VA students would approach him at the beginning of the semester regarding such an arrangement, citing health and age reasons, so that they would no longer be required to attend regular classes. Another instructor stated that the students were not required to attend regular classes because they already knew the subjects. Some students and faculty indicated that the VA students often came to class lectures only once or twice a week, and others indicated that many of the veterans never attended classes. For example, one non-VA student reported that he had never seen any of the VA students actually attending class over a two-year period, and another non-VA student admitted to having been "coached" to tell the VA investigators that the VA students had attended classes when, in fact, they had not. One non-VA student indicated that he had seen VA students attending classes for only one month in the 2002-2003 semesters, and at no time since. In an on-site visit of one of the laboratory farms, an individual working with the animals stated that he was a second-year student. He said that the VA students, who he called "Veterans," came to the farm about twice weekly, in small groups, but did not perform any of the labor. They took care of the financing, and that the regular students fed and cleaned up after the animals, and took care of the crops. The instructors interviewed indicated that in the classroom, the VA students were separated from the non-VA students, due to the different qualifications of the students, and, principally, due to the language barrier between the Filipino students and the VA students, many of whom were originally from the United States. Several of the VA students were, in fact, Filipinos, but they were nevertheless included in the VA student group. In these depositions, some instructors revealed that they did not personally verify the presence of the VA students in their classes, but, instead, relied on attendance sheets regularly submitted by a representative of the VA students. Some of the instructors indicated that they either did not know whether the VA students actually attended, and some admitted that they were aware of the fact that the VA students did not attend many classes. Instructors also gave various reasons for the different treatment accorded VA students over non-VA students, such as language barriers, that the VA were "old," or the VA students already having advanced knowledge. Faculty members, non-VA students, and even some VA students acknowledged that VA students were only expected to act as financiers by providing monetary assistance to complete projects while the non-VA students were expected to do the labor. Several faculty members and non-VA students reported that the non-VA students were stringently held to the requirement of reporting to class five days a week, but that VA students were not. Some faculty members also admitted that they had been given cash incentives by the administration, which they were told came from donations by the VA students. However, many stated that they had not received cash, and two stated that they had announced the attendance and participation requirements at the beginning of a term, but that they had been approached by the VA students after class, who said they could not attend the classes regularly, giving reasons such as they felt uncomfortable with the other students. At the San Marcelino Campus, a meeting was held with the VA students in which they were invited to make statements under oath. Several students became hostile, one accused VA of a "witch hunt," and another explained that they would only submit a joint written statement, and not offer testimony under oath. In the written statement, which was signed by seventeen VA students, including the Veteran that is the subject of this decision, they explained that the minimum attendance requirement was one hour of classroom instruction a week and/or three hours of laboratory time. They also admitted that class leaders take the attendance by signature of each veteran at the Veterans Park and delivered the attendance sheet to professors, at which time they were given the class assignments. A Summary of Investigative Findings revealed the conclusions of the Manila RO investigation team. It was determined that teachers at RMTU did not require VA students to regularly attend classes, but, instead, relied on class leaders to submit Attendance Sheets that contained the names of the VA students enrolled in the particular class. Teachers apparently relied solely on these Attendance Sheets to assess the students' attendance, and, in fact, did not really know whether their VA students were even present on campus. All they knew and saw as to the VA students' attendance was when they observed VA students gathering at the Vet-Park. The VA students gave material and financial "help" to the school, and, in return, were accorded favorable treatment in violation of the Approval Agreement that the school had made with VA. The scheme was found to have been happening for decades with one teacher disclosing that VA students had been enjoying the arrangement since that teacher had started in 1983. Most teachers, staff, and non-VA students admitted that the VA students had not been attending classes, which was contrary to the insistent claims of the VA students. As alluded to above, the Veteran that is the subject of this decision was identified in the report as one of the VA students that had not been attending classes. Following this investigation, in June 2003, a recommendation was sent to the Muskogee RO to create overpayments for each of the sixty veterans who were the subject of the investigation. In August 2003, the Veteran that is the subject of this decision, received a letter from the Muskogee RO advising him that he had been certified and paid educational assistance benefits for attending RMTU from April 4, 2002, through June 6, 2003, but that their findings indicated that he did not attend classes during that period. His payments were stopped, which resulted in an overpayment in the amount of $8,427.40. He was advised of his right to request a waiver of this overpayment. The Veteran submitted a signed notice of disagreement in September 2003 in which he disputed the validity of the indebtedness. Thereafter, in February 2004, an agent of the Criminal Investigation Division of the VA Office of Inspector General (OIG) in San Francisco, California, completed a report regarding his review of the situation at RMTU. The agent explained that his analysis was based on an extensive review of the documentation detailing interviews conducted by the Manila RO, correspondence sent by the veterans, a review of files at the Muskogee RO, and interviews of various VA officials and other individuals. The agent further explained that his review was also based on fourteen years of experience as a Special Agent with the OIG, some of which has been as a Resident Agent in Charge. The agent noted that he had extensive training in conducting fraud investigations, and has also worked extensively in the Philippines on VA-related investigations. Based on his review, the agent concluded that fraud was committed by the sixty VA students who had attended RMTU, and it was his recommendation that all administrative action be taken to recover monetary damages suffered by VA and to forfeit the benefits of the involved veterans. However, based on the complexities and expense of prosecuting individuals in the Philippines, the OIG decided not to proceed with a criminal investigation of the matter. Regarding the findings of the OIG, the agent explained that the essence of the "scheme" at RMTU was that the Veteran students were listed as enrolled at RMTU, as full-time students, solely to collect VA benefits. They never really attended classes, and would meet once a week at a location on campus to circulate attendance sheets for various classes they were enrolled in. They would sign these sheets, and a representative would take them to the relevant instructors. The students were given mid- term and final exams, but these exams were given to a representative, and taken to the Vet-Park, where they would be answered collectively based on the "honor system." All of the Veterans would subsequently receive passing grades, and the school benefits from this system because the Veterans would pay for various expenses, usually collectively, through money collected by their "treasurer." It was noted that items paid for by the students included new curtains, sports equipment, water dispensers, renovations, holiday party expenses, and the materials costs associated with class projects. The agent explained that the evidence of all sixty veterans' guilt included the following: the testimony of thirteen professors/instructors, plus the Dean of Agricultural Technology, who indicated that the VA students never attended classes; the testimony of seven non-VA students and one VA student that was not involved in the scheme, who all indicated that the veterans did not attend classes; and the testimony of non-VA students, who indicated that the scheme participants began attending classes regularly after the onset of the investigation by the Manila RO. The agent also pointed to the joint statement signed by seventeen of the VA students in which they asserted that they met the minimum requirement of one hour of classroom instruction per week and/or three hours of laboratory time for each subject. The agent found that this statement was clearly contrary to the testimony provided by instructors and fellow students, but is indicative of their knowledge that classroom attendance was required. The agent also noted that a similar scheme was in place at Laney College in Oakland, California, and that scheme resulted in a loss of $6 million for VA. The agent indicated that it was his belief that the scheme at Laney College was exported from the school in the Philippines, as there were many similarities beyond just the mechanics of the scheme, similar terminology, and the fact that the RMTU scheme had reportedly been going on since the 1980s. Furthermore, several RMTU instructors noted that, when the naval center was still active, they had many more veterans enrolled. The agent noted that the students at Laney College had been sued in Federal Court under the Civil False Claims Act, and most of them paid double damages plus fines. During the pendency of this appeal, the Veteran's attorney has submitted numerous letters raising various arguments in support of his appeal. The attorney's arguments will be addressed in detail below. Additionally, the Veteran has submitted, in support of his claim, lay statements, a copy of his official transcript of record from RMTU, and a letter signed by five RMTU faculty and staff certifying that the Veteran attended all required classes for the period that is the subject of this decision. III. Legal Criteria and Analysis The purposes of Chapter 30 educational assistance are: (1) to provide a new educational assistance program to assist in the readjustment of members of the Armed Forces to civilian life after their separation from military service; (2) to extend the benefits of a higher education to qualifying men and women who might not otherwise be able to afford such an education; (3) to provide for vocational readjustment and to restore lost educational opportunities to those service men and women who served on active duty after June 30, 1985; (4) to promote and assist the All-Volunteer Force program and the Total Force Concept of the Armed Forces by establishing a new program of educational assistance based upon service on active duty or a combination of service on active duty and in the Selected Reserve (including the National Guard) to aid in the recruitment and retention of highly qualified personnel for both the active and reserve components of the Armed Forces; (5) to give special emphasis to providing educational assistance benefits to aid in the retention of personnel in the Armed Forces; and (6) to enhance our Nation's competitiveness through the development of a more highly educated and productive work force. 38 U.S.C.A. § 3001 (West 2002). The law provides that VA will approve and will authorize payment of educational assistance for an individual's enrollment in any course or subject which a State approving agency has approved and which forms a part of a program of education as defined by 38 C.F.R. § 21.7020(b)(23) (2010). 38 U.S.C.A. § 3002(3) (West 2002); 38 C.F.R. § 21.7120. A program of education, in pertinent part, is any unit course or subject or combination of courses or subjects, which is pursued at an educational institution. 38 C.F.R. § 21.7020(b)(23). The Veteran had been previously determined to be eligible for Chapter 30 education benefits. Therefore, he was entitled to a monthly benefit for the period of time he was enrolled in, and satisfactorily pursing an approved program of education. 38 U.S.C.A. § 3014 (West 2002); 38 C.F.R. § 21.7070 (2010). The term attendance means the presence of a veteran (i) in the class where the approved course is being taught in which he is enrolled, or (ii) at a training establishment, or (iii) any other place of instruction, training or study designated by the educational institution or training establishment where the veteran is enrolled and is pursuing a program of education. 38 C.F.R. § 20.7042(b)(2) (2010). In order to receive educational assistance for pursuit of program of education, an individual must maintain satisfactory attendance. 38 C.F.R. § 21.7153(c) (2010). VA will discontinue educational assistance if the individual does not maintain satisfactory attendance. Id. Attendance is unsatisfactory if the individual does not attend according to the regularly prescribed standards of the educational institution in which he is enrolled. Id. The amount of overpayment of educational assistance paid to a veteran constitutes a liability of that veteran. 38 C.F.R. § 21.7144(b) (2010). The Veteran is challenging the validity of the overpayment of Chapter 30 educational assistance in the amount of $8,427.40. He essentially contends that he did regularly attend classes at RMTU, and that he never intended or took action to defraud the government by receiving educational assistance benefits to which he was not entitled. In this case, investigations conducted by the Manila RO and the VA OIG in San Francisco revealed that sixty veterans attending RMTU, including the Veteran that is the subject of this decision, were part of a scheme whereby they received passing grades in return for providing monetary donations and other gifts to the school, even though they did not regularly attend classes. As determined by the OIG, this scheme was intended to allow the veterans to continue to receive VA educational assistance benefits based on their enrollment at RMTU. As previously discussed, the evidence of this scheme includes the testimony of professors and instructors, who indicated that the veterans never attended classes and were receiving passing grades in return for their donations; and the testimony of non-VA students, who also indicated that the veterans did not attend classes, but still received course credit in return for their donations. Although the Veteran has asserted that he did, in fact, attend courses at RMTU, the Board finds that these assertions lack credibility in light of the testimony provided by the faculty members, other VA students, and non-VA students at that school, and the findings of both the Manila RO and OIG. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Also relevant to its determination is the fact that the only evidence submitted during this appeal in an attempt to corroborate the Veteran's assertions that he attended classes is a vague statement attesting to the Veteran's attendance which was signed by school personnel. As discussed in more detail below, the Board finds statements made by RMTU personnel after the fraud investigation to be of less probative value than those made during the investigation. Furthermore, given the nature of this fraud scheme, the Board is of the opinion that additional corroborative evidence (other than lay statements which it finds not to be credible) is necessary to show that the Veteran did not participate in the scheme such as class lecture notes, a completed assignment/module, and/or examination report. It is clear from the findings of the Manila RO and the OIG that the practice of the VA students not having to attend classes was widely known and had been routine practice for many years at that university. The investigation of the Manila RO also specifically identified this Veteran as one of the sixty who participated in this scheme. Nevertheless, the Veteran asserts, and the Board acknowledges, that none of the investigation documents or depositions contain an express notation that the Veteran did not attend his classes. However, the Board has been provided a copy of the Veteran's official RMTU transcript for the 2002-03 academic year, and based on the coursework taken, observes that a number of teachers associated with his degree program were deposed in May 2003 and admitted that their VA students did not attend classes. The RMTU instructors, including the Veteran's Agricultural Mechanics II (AMII), Soil Management and Conservation (SMC), Horticultural Crops Production Management (HCPM), Post-Harvest Technology (PHT), Swine Production Management (SPM), and Farm Business Management (FBM) instructors, clearly described to investigators that the VA students did not attend class along with non-VA students, but instead submitted Attendance Sheets. In fact, the Veteran's FBM, AMII, and HCPM instructors were only able to recall the names of those VA students who submitted these Attendance Sheets; neither was able to name the Veteran as an enrolled student. The Veteran's SMC instructor stated that a similar policy was in place for this class and that grades for the VA students were based predominantly on any mid-term or final. The Veteran's instructors also indicated that the VA students were allowed to complete examinations outside of the classroom and were not required to complete any laboratory assignments. With respect to the latter, the Veteran's SMC instructor indicated that the VA students provided books in lieu of completing any assignments. A number of the RMTU instructors noted that they were under the impression that the special treatment given to VA students was an accepted practice among the teachers at the school. Notably, the AMII instructor explained to investigators that she had informed the VA students at the beginning of the semester that she wanted them to attend regular classes along with the non-VA students and that it was the VA students who insisted that they be allowed to miss class. Since it was her understanding that this was a special privilege afforded to these students, she allowed it. The above examples show non-attendance and/or non-participation by the Veteran in nearly all of his courses. In fact, only one of the Veteran's RMTU instructors appears not to have been interviewed. Relevant to this decision, however, these examples demonstrate that the Veteran was directly involved in the fraud scheme discovered during the RO and OIG investigations. Further, given that multiple administrators and instructors at RMTU confirmed the scheme, including the special treatment afforded Veteran students, the Board finds it reasonable to conclude that the Veteran was also not attending his other courses despite any contentions that he was attending class. In evaluating the Veteran's credibility, the Board notes that it also considered the Veteran's participation in the "joint statement" submitted by seventeen VA students as evidence of his deceitfulness. This statement contained significant admissions from the students, including use of Attendance Sheets to inform instructors of who was "attending" classes and acknowledgment of donations to various class projects and/or practicum. Further, the OIG specifically identified this statement as indicative of the veteran students' knowledge that classroom attendance was required per RMTU policy (and that their lack of attendance was contrary to the school's policy). In the Board's opinion, the fact that the Veteran participated in this joint statement further discredits the credibility of his statements made throughout this appeal. In this regard, the joint statement contains blatantly false assertions such as the nonexistence of a formal veteran's organization on campus. The Board has already discussed the fact that there is an overwhelming amount of evidence to the contrary, including testimony from VA students that leaders were elected to organize and represent all of the veteran students as well as testimony from RMTU administrators and faculty confirming a formal organization. The Board has considered the remarks contained in the record from various veteran students that the second page of the joint statement, which admittedly contains the most damaging admissions, was fraudulently created and that the signatures provided on the back of this page were "obviously made [from] a copy of [the veterans] signatures from the original page one of the [j]oint [s]tatement." However, after careful inspection of the joint statement, it finds the contentions of fraud lack credibility. First, the Board notes that the names do not appear in the same order as on first page of the joint statement. However, perhaps more importantly, a number of the signatures on the first page overlap each other in such a way as to make it impossible to move the order around. Similarly, the signatures on the second page have their own patterns of overlap, thereby lending support to the fact that they were not reproduced by the Manila RO. As for the credibility of the compliance and investigation reports, as contrasted against the Veteran's own lay assertions of attendance and compliance with the school's policies, the Board has considered the contention by the Veteran and his attorney that one or more of the employees of the Manila RO insinuated to the VA students and faculty of RMTU that they were open to bribes, and that it was only the failure to pay such bribes that resulted in the findings of the RO's investigation. The only evidence, however, suggesting that RO employees undertook such conduct is apparently the assertions of the attorney's clients. And their credibility must be weighed against the numerous depositions from faculty members and non- veteran students indicating that the VA students did not attend classes, and the specific findings of fraud that were made by both the Manila RO and the OIG in San Francisco. It is difficult to imagine that a failure to accept bribery offers from Manila RO employees could have resulted in the fabrication of the substantial amount of evidence obtained by that RO of the scheme that apparently existed in RMTU. Furthermore, the depositions and other documents created as a result of their investigation were independently reviewed by the OIG in San Francisco, as well as statements of the VA students. As noted, the OIG specifically found that fraud had occurred at RMTU. It seems extremely unlikely that the employees of the Manila RO could have fabricated the testimony of the faculty members and students at RMTU who reported that the veterans were allowed to pass classes without attending in exchange for gifts, and it also seems equally unlikely that the faculty members or students at RMTU would testify to such if the practice was not actually occurring. There seems to be no motivation for either faculty or non-VA students to lie about such a scheme if it did not, in fact, exist. The Veteran's attorney submitted several statements signed and dated in March 2005 by instructors at RMTU stating, as a general matter, that they would never misreport a student's attendance and discussing the conduct of the investigation. These statements indicate that the RMTU faculty were told that their teaching licenses would be suspended if they failed to testify that the VA students were not attending classes. The majority of these statements also noted that the VA students attended all classes as required, and that evidence to that effect had been provided to the Manila RO staff (and that such evidence was never returned). In evaluating this evidence, the Board observes, first, that all of these individuals were either instructors or school officials, all of whom had an interest in maintaining the school as a VA- approved school and/or had admitted to their own misconduct in their earlier statements. The justification of a threat of loss of teaching license is also dubious, as once they had admitted, in a sworn deposition, that they had not required the VA students to attend classes, and other acts of complicity, the continuation of their teaching licenses became more precarious, not less. It is also noteworthy to point out that nearly all of the faculty deposed during the investigation were asked if they had any complaints with regard to the manner and content of their deposition and that none indicated a problem. Equally relevant is the fact that these allegations have only surfaced recently, and were not brought to someone's attention when the OIG was investigating the bribery allegations. Finally, in comparing the new statements with the original investigation statements, the original statements contained detailed descriptions of the special treatment accorded to the VA students, emphasized different points, and sounded as if they came from different people using their own words in a more spontaneous manner. In contrast, the new statements, which are contained on forms apparently drawn up for the purpose, have some preprinted language, as well as some space for individual, handwritten responses. Oddly, though, nearly all of the handwritten responses appear to have been written by the same person, although the signatures vary. There were more similarities in the content and language used than there were in the lengthier depositions taken in the course of the investigation. It is also significant to note that none of the disinterested witnesses attempted to modify or recant their earlier statements. For these reasons, the Board finds the earlier statements - namely, those used by VA and OIG to reach its findings and conclusions - to be more credible. The Board's conclusions appear consistent with the findings of the Special Agent of Los Angeles OIG, as explained in his December 2004 letter. That agent explained that it had chosen not to pursue an investigation into the bribery charges against D.B. because the complainants were the same individuals who were the subject of the RMTU investigation, and that they had a strong motivation to discredit the VA investigators who uncovered their scheme. It was noted that the San Francisco OIG had conducted an extensive review of the situation at RMTU, and had concluded that there was an "overwhelming" amount of the evidence indicating that those students had engaged in a fraudulent scheme. It was further noted that D.B. was not in charge of the field investigators, and had no authority over the outcome of the investigation. The evidence collected of the scheme was obtained by eleven different field investigators, and D.B. had no authority over any of them. Moreover, the management of the Manila RO was involved in planning the investigation from the outset, and he would have not have been able to exercise considerable influence over the outcome. It was noted that bribes were typically solicited by individuals that had authority to effect some type of outcome, which was a scenario that did not exist here. For these reasons, the Special Agent determined that the allegations lacked credibility and had been put forth in an attempt to obscure the issues and deflect the guilt of the involved veterans. The Board notes that the Veteran and his attorney have also pointed to various documents from RMTU in support of his appeal, including Enrollment Certifications and a transcript of passing grades. However, it was implicit in the scheme discovered by the Manila RO, and later confirmed by the OIG, that the VA students at RMTU received course credit in return for the donations and gifts that they provided the school. In fact, the school's VA approval was revoked as a result. Certainly, it is clear that RMTU routinely confirmed to the RO that these students were enrolled, attending classes, and receiving passing grades. Documentation to that effect, such as transcripts or enrollment certifications, in no way contradicts the findings of the Manila RO or the OIG, and the Board finds it to be of no probative value. In support of the Veteran's claim, his attorney has also cited to the provisions of 38 C.F.R. § 21.7153(c), which defines "satisfactory attendance" on the part of a beneficiary as meeting the regularly prescribed standards of the educational institution in which he is enrolled. He essentially argues that, because the school accepted the Veteran's attendance as adequate, VA is obligated to do so regardless of the frequency of the Veteran's actual attendance. However, according to the Approval Agreement, there must be "at least one-hour per week of in-seat classroom attendance and/or three-hour per week of laboratory attendance is required for each unit certified or VA benefits." No provision was made for the instructor to dispense with this requirement, particularly not for all of the veterans in his or her class. As discussed in detail above, there is persuasive testimony of record from faculty members and non-veteran students at RMTU that the VA students were not being held to the same standards of attendance or class participation that the non-VA students were, and that this was due, at least in part, to the donations made to the school by the VA students. Moreover, it is not entirely clear that this was the official policy of RMTU as at least one administrator reported that all students were required to attend class regardless of their veteran status. Another administrator, however, openly admitted that the VA students were often segregated from their non-VA peers. Either way, it cannot be said that the veteran students were meeting the regularly prescribed standards of RMTU as contemplated by 38 C.F.R. § 21.7153(c) given that non-VA students pursuing the same degree program were required to follow different attendance policies in addition to having to perform laboratory assignments and in-class tests and quizzes. Furthermore, it is implicit in all of the statutes and regulations dealing with the administration of Chapter 30 benefits that a veteran beneficiary be pursuing a meaningful program of education in exchange for his VA benefits. See, e.g., 38 C.F.R. § 21.7020(b)(25)(i) (2010). As noted, the scheme discovered by the Manila RO involved beneficiaries who received course credit and passing grades without having to attend classes or otherwise participate in class in return for monetary donations and other gifts they made to the university. It is difficult for the Board to imagine any argument that could justify this scheme as being consistent with the purpose of Chapter 30 benefits. In the Board's opinion, the school's complicity does not in any way mitigate the actions of the Veteran in participating in this scheme. Finally, although the Veteran has asserted that he did, in fact, attend courses at RMTU, he has not offered any evidence in support of his contentions, other than the general evidence discussed above. He has not offered any statements from disinterested parties (e.g., non-VA students), class notes, completed assignments, or recollections of specific events that transpired during a classroom or laboratory session, which might add to the probative value of his bare assertion that he attended all classes as required. Absent such evidence, and with consideration of the testimony provided by the faculty members and non-VA students at that school, and the findings of both the Manila RO and OIG, the Board finds the Veteran's lay statements lack credibility. It is clear from the findings of the Manila RO and the OIG that the practice of VA students not having to attend classes was widely known and had been routine practice for many years at that university. The investigation of the Manila RO also specifically identified this Veteran as one of the sixty who participated in this scheme; and he has not stated that he was not part of this scheme. In summary, as discovered by the investigations of the Manila RO and the OIG highlighted above, the Board finds that the Veteran was paid for pursuing a program of education at RMTU but that he did not actually attend classes. 38 C.F.R. § 20.7042(b)(2). An overpayment of $8,427.40 was properly created as a result of the payment for courses at that university. The Veteran is liable for the overpayment debt. 38 C.F.R. § 21.7144. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. Weighing the OIG and VA reports against overwhelmingly incredible evidence, it is clear that a preponderance of the evidence is against the Veteran's claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An overpayment of $8,427.40 was properly created; the appeal is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs