Citation Nr: 1222975 Decision Date: 07/02/12 Archive Date: 07/13/12 DOCKET NO. 11-14 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The appellant was scheduled to appear at a travel board hearing in April 2012, but he failed to appear for the hearing. Accordingly, his request for a travel board hearing is deemed withdrawn. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT In October 2010, the RO determined that the appellant had forfeited all claims due to fraudulent identity. CONCLUSION OF LAW The requirements for eligibility to a one-time payment from the FEVC fund are not met. 38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203, 3.901 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Under the American Recovery and Reinvestment Act, a 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). Payments for eligible persons will be either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service ...." However, nothing in this act "prohibit[s] a person from receiving any benefit (including health care, survivor, or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of this Act." Section 1002 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East During World War II. Section 1002 (c)(1) provides that the Secretary may make a payment from the compensation fund to an eligible person who, during the one-year period beginning on the date of the enactment of this Act, submits to the Secretary a claim for benefits under this section. The application for the claim shall contain such information and evidence as the Secretary may require. Section 1002 (c)(2) provides that if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person. Section 1002 (d) provides that an eligible person is any person who--(1) served--(A) 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, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States; or (B) in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ); and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable. In February 2009, the appellant submitted a claim for compensation from the FEVC fund. On the claim form, the appellant indicated that he had Recognized Guerilla service from September 1944 to October 1945. The appellant identified himself as "E.D.B." and gave a birthdate in August 1924. In June 2009, the RO contacted the NPRC in order to verify the appellant's service and obtain service records. In August 2009, NPRC certified that the subject's name was listed on the Reconstructed Recognized Guerilla Roster maintained by the Manila RO. An affidavit of Philippine Army Personnel showed that a person with the same first and last name as the appellant, born in March 1925, had qualifying service between 1944 and 1946. The Board notes that the date of birth provided by the appellant in his claim was different from the birth date in the service records obtained from the NPRC. In September 2009 the RO sent the appellant a letter which stated that he was entitled to compensation under the FEVC. On October 5, 2009, the RO requested a field examination to verify whether the beneficiary was still alive or being deprived of VA benefits. The investigation was also to verify the beneficiary's identity and continued entitlement to VA benefits. A report of field examination, dated October 9, 2009, indicated that the appellant could not be personally contacted at his given address. He was no longer living at his given address, and his whereabouts were unknown. The appellant's former landlady disclosed that the appellant stopped renting at that address more than a year ago. The report noted that the circumstances gave doubt to the beneficiary's identity and existence. A report of general information, dated October 23, 2009 shows that the appellant was contacted by telephone. The appellant indicated that he was still living at the address in the VA records. He was advised that someone from VA would visit him again. On October 28, 2009, the appellant was interviewed at his residence in Caloocan City, and his photograph, signature and fingerprint impressions were taken. A report of the field investigation, dated November 3, 2009, reflects that the appellant claimed that he was a former labor leader and applied for veteran's pension at PVAO when he joined the Veterans Federation Party. However, when confronted as to why he used a very dilapidated identification from the Veterans Federation he began to mumble words and stopped responding to inquiries. He certified that he uses the same signature as used to sign the alleged Affidavit for Philippine Army Personnel. The report noted that evidence and personal interviews disclosed that the applicant was an impostor. The applicant was using identification from the Veterans Federation of the Philippines that belonged to a potential deceased veteran. It was also noted that the signatures were different from the records on file. Finally, the legal documents the applicant provided contained a different birth date in August 1924. The rightful Veteran's birthdate was noted to be in March 1925. The applicant disclosed that he was born in August 1924 in Iguig, Cagayan. The investigator recommended that the claim be disallowed since the applicant was an impostor. In October 2010, the RO notified the appellant that his claim for compensation under the Filipino Veterans Equity Compensation fund was denied. The RO found that the evidence showed that the appellant was born in August 1924. Based on the report of field examination dated November 3, 2009, the appellant presented new and expired Philippine passports showing the same name, same date of birth and his signature. However, the name indicated in the military service record in the file was "E.D.B." with a different date of birth and signature from that of the appellant. The RO found that the appellant was a different "E.D.B." than the individual who was considered eligible for payment. The letter advised the appellant that all claims from him would be forfeited due to fraudulent identity. In the substantive appeal dated in April 2011, the appellant stated that the reason there was a different birthdate on the military documents (which showed a birthday in March 1925) and on the claim form was because birth certificate was burned by the Japanese army in 1942 and he had to guess his birthdate. He stated that he obtained his real birth certificate in 1953, which showed his birthdate in August 1924. The appellant also explained the discrepancy between the address he gave the RO in his claim and the address where he was located at the time of the field examination. The appellant indicated that he had resided at the address he provided to the RO but left that address when his wife died and went to live with his daughter. The Board does not find the appellant credible. The totality of the evidence, including the discrepancy in the birthdate shown in the documents obtained during the field investigation and the birthdate in the certification from the NPRC, as well as the obvious difference between the signatures in the official service records and those obtained from the appellant during the field investigation, support a conclusion that the appellant is not the same "E.D.B." as identified in the documents obtained from the NPRC. The Board observes that the appellant does not legally qualify for a one-time payment from the FVEC fund. The Board notes that 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). The American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5, was enacted on February 17, 2009. Section 1002 (c)(1) provides that the (VA) Secretary may make a payment from the compensation fund to an eligible person who, during the one-year period beginning on the date of the enactment of this Act, submits to the Secretary a claim for benefits under this section. The application for the claim shall contain such information and evidence as the (VA) Secretary may require. In this case, the appellant has forfeited 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) ); 38 C.F.R. § 3.901(a) (2011). The distribution of payments from the FVEC fund is administered by the Secretary. Therefore, the appellant is not entitled to a one-time payment from the FVEC fund. This is a case where the law is dispositive. Sabonis v. Brown, 6 Vet. App. 426 (1994). The appellant does not meet the requirements for a one-time payment from the FVEC fund. Therefore, the claim must be denied based upon a lack of entitlement under the law. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000, codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 ), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. However, the U.S. Court of Appeals for Veterans Claims (Court) has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231- 32 (2000). ORDER Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs