Citation Nr: 1126846 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 10-03 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been received to reopen a claim for revocation of forfeiture of the appellant's right to VA benefits. WITNESSES AT HEARING ON APPEAL Appellant and M.D. ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served with the Philippine Commonwealth Army from December 1941 to March 1946. The Veteran died in 1994. The appellant is the Veteran's surviving spouse and is unrepresented in this matter. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decisional letter of the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO). The appellant presented testimony at a Travel Board hearing in April 2011 before the undersigned Veterans Law Judge. FINDINGS OF FACT 1. In November 2001 the Board determined that the appellant had forfeited her right to VA benefits. 2. Evidence received subsequent to the November 2001 Board decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the forfeiture claim. CONCLUSIONS OF LAW 1. The November 2001 Board decision which determined that the appellant had forfeited her right to VA benefits is final. 38 U.S.C.A. § 7104 (West 2002). 2. Evidence received since the November 2001 Board decision is not new and material, and the appellant's forfeiture claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in May 2009 and June 2009 the appellant was informed of the evidence and information necessary to substantiate the claim, the information required of the appellant to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. In the May 2009 letter, the appellant received notice regarding the assignment of an effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the June 2009 letter contains the information required by Kent v. Nicholson, 20 Vet. App. 1 (2006), and testimony given at the April 2011 Board hearing reveals that the appellant was well aware of the issue on appeal. VCAA notice was completed prior to the initial AOJ adjudication of the claims. Pelegrini. Duty to Assist The appellant has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. New and material Generally, a final Board decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7104. Under 38 U.S.C.A. § 5108, however, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). A November 2001 Board decision determined that the appellant had forfeited her right to VA death benefits. The November 2001 Board decision is final. 38 U.S.C.A. § 7104. In March 2009 the appellant filed an application to reopen the forfeiture claim. In an August 2009 decisional letter the RO denied the appellant's petition to reopen the claim, and the present appeal ensued. Forfeiture 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). It is also noted that, under current VA law, "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. See Trilles v. West, 13 Vet. App. 314, 320-22, 326-27 (2000) (en banc). Such a 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 under 38 C.F.R. § 3.306(b) or the "clear and convincing evidence" standard set forth at 38 C.F.R. § 3.343(c) required to show actual employability in reducing a rating of 100 percent. Trilles, 13 Vet. App. at 327. The Veteran died in April 1994. In September 1996 the appellant filed VA Form 21-534, Application for DIC, Death Pension, and Accrued Benefits by a Surviving Spouse or Child. In that claim she reported that she had been born in November 1939 and, with respect to identification of children of the Veteran, that there was a child born in September 1987. A July 1997 rating action granted the appellant DIC. The appellant was notified that she was to be paid DIC at the rate for a surviving spouse without dependents and that additional evidence in the form of a birth certificate would be needed before any additional benefits could be awarded for the child she had reported. A September 1997 document purporting to be from the Office of a Local Civil Registrar in the Philippines, submitted by the appellant, reflects that the appellant and the Veteran had a son born in September 1987. A November 1997 Report of Contact indicated that the appellant had stated that the child in question "is really the son of his [sic] brother which they registered under her name and that of the veteran when [the] child was still an infant." The appellant explained that she had not told the truth during the field investigation which was why she had declined to sign the deposition taken by a field investigator. In VA Form 21-4138, Statement in Support of Claim, in November 1997 signed by the appellant, she stated that "I am now admitting before you . . . that [he] is not my son." An Administrative Decision in March 1998 found that the Veteran and the appellant did not have a child and, thus, the minor who had been claimed as a child for additional DIC benefits did not qualify for the appellant's entitlement to additional VA benefits. In VA Form 21-4138 of April 1998 the appellant withdrew her claim for additional DIC, stating that it had not been her intention to claim him as a dependent; rather, this was an unintentional error. She had only listed him as a child because she considered him to be her child inasmuch as she had raised him. In September 1998 the appellant's attorney stated that "when my client stated in her application that [the child in question] was her son, she did so in the honest belief that [the childe in question] was indeed her son as reflected in the child's birth certificate and she stated so in the honest belief that the procedure they followed in making themselves appear as the parents of [the child in question] without the benefit of a court adoption was legally right. We assure your office that my client was never motivated by bad faith, because . . . [the veteran and the appellant] for all intents and purposes, had always treated [the child in question] as their real child [. . .] . She did not realize and she was not aware that she has to file a Petition for adoption in Court before she can claim [the child in question] as her own child." Also, she had not revealed the truth to investigators because she feared that the child in question might learn the truth (that he was not her biological son). Also, the amount of DIC she received was needed for daily sustenance and survival. In November 1998 the VA Director of Compensation and Pension Services determined that the appellant had submitted fraudulent evidence in violation of 38 U.S.C.A. § 6103(a) and forfeited all rights, claims, and benefits to which she might otherwise be entitled under laws administered by VA. At a June 2001 Board hearing the appellant testified that an attorney had advised her that because the child was her nephew that she and the Veteran should not pursue adoption because it would be a long, tedious, and costly process. The appellant also testified that she had not intentionally tried to defraud the VA. The November 2001 Board decision found that the appellant had submitted documents which contained information which she knew was incorrect and which were the basis for an award of additional VA compensation. The Board found that her acts constituted fraud and were a proper basis for forfeiture of all VA benefits. The evidence added to the claims file subsequent to the November 2001 Board decision consists essentially of the appellant's April 2011 Board hearing testimony wherein she stated that it had not been her intention to lie in connection with her original death benefits claim. As discussed in detail in the Board's November 2001 decision, VA's 1998 decision of forfeiture was based on multiple pieces of evidence, including field investigations and interviews with multiple people in the appellant's community. The evidence added to the claims file subsequent to the November 2001 Board denial does not raise a reasonable possibility of substantiating the forfeiture claim. In order to substantiate the claim, the appellant would have to produce new and material evidence on the issue of whether she had committed fraud against VA regarding her "son's" status. In her April 2011 Board hearing testimony the appellant, while expressing remorse, did not deny that she had provided fraudulent information concerning her "son" in connection with her 1996 VA death benefits claim. In short, evidence received subsequent to the November 2001 Board decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the appellant's claim. As such, the Board finds that the evidence received in conjunction with the claim to reopen is not new and material, and does not serve to reopen the claim for revocation of a forfeiture of VA death benefits. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156(a). In reviewing the foregoing, the Board has been cognizant of the "benefit of the doubt" rule, but there is not such an approximate balance of the positive evidence and the negative evidence to permit a favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal to reopen a claim for revocation of the forfeiture of VA death benefits is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs