Citation Nr: 1301112 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 08-24 955 ) 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 submitted to reopen a claim of entitlement to service connection for the cause of the Veteran's death. WITNESSES AT HEARING ON APPEAL Appellant and P.E. ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran was beleaguered from December 1941 to April 1942, and he had recognized guerilla service from August 1942 to May 1945. The Veteran died in January 1987, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO) and Board remand. A June 2009 rating decision determined that the appellant forfeited her eligibility to VA benefits under the provisions of 38 U.S.C.A. § 6103(a) (West 2002). In October 2009, the appellant filed a notice of disagreement to the June 2009 rating decision. In April 2011, the Board remanded the appellant's appeal of the June 2009 RO determination for the issuance of a statement of the case. The record reflects that a statement of the case addressing the propriety of the finding that the appellant forfeited her eligibility for VA benefits based on fraud was issued in August 2012. However, the appellant did not file a substantive appeal; accordingly, it is not before the Board at this time. Additionally, in its April 2011 remand, the Board requested that, after issuing a statement of the case with regard to the finding that the appellant forfeited her eligibility to VA benefits on the basis of fraud, the RO issue a supplemental statement of the case addressing the appeal of her request to reopen the issue of entitlement to service connection for the cause of the Veteran's death if the RO continued to deny that claim. The Board observes that the RO did not issue a supplemental statement of the case with regard to that issue. Nonetheless, the Board finds that there was substantial compliance with the April 2011 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The RO substantially complied with the directives set forth in the April 2011 remand by issuing a statement of the case with regard to the issue of whether a declaration of forfeiture of eligibility for VA benefits against the appellant was proper, but the RO did not completely comply with all of the directives, as the RO did not issue a supplemental statement of the case regarding the intertwined claim to reopen the issue of entitlement to service connection for the cause of the Veteran's death. In this case, the RO's failure to issue a supplemental statement of the case with regard to the appellant's claim to reopen the issue of entitlement to service connection for the cause of the Veteran's death is not prejudicial to the appellant. As explained in greater detail below, the appellant's claim is denied as a matter of law; therefore, RO consideration of the claim in a supplemental statement of the case could not have led to an alternative outcome. Thus, the Board's consideration of the appellant's claim at this time cannot cause any prejudice to the appellant. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a June 2009 decision, the RO determined that the appellant forfeited all rights, claims, and benefits for eligibility for VA benefits due to fraud under the provisions of 38 U.S.C.A. § 6103(a). 2. Although the appellant filed a notice of disagreement to the June 2009 decision, the appellant failed to perfect her appeal; therefore, the June 2009 decision is final. CONCLUSION OF LAW The claim to reopen the issue of entitlement to service connection for the cause of the Veteran's death is denied, as entitlement to VA benefits is precluded by law. 38 U.S.C.A. § 6103(West 2002); 38 C.F.R. § 3.901 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Although VA has statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act (VCAA), those provisions are not applicable here, where resolution of the claim is as a matter of law. See Manning v. Principi, 16 Vet. App. 534, 542 (2002) (holding that the VCAA has no effect on appeal limited to matter of law); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (noting that the VCAA is not applicable where law is dispositive); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The appellant contends that she has submitted new and material evidence sufficient to reopen her claim of entitlement to service connection for the cause of the Veteran's death. In a May 1987 rating decision, the RO denied service connection for the cause of the Veteran's death, as the Veteran's death was not shown to be due to a service-connected disability. The appellant did not perfect an appeal of that rating decision, and it is final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2012). The appellant filed another claim for entitlement to service connection for the cause of the Veteran's death in March 2004. In a June 2004 rating decision, the RO denied the appellant's claim on the merits, finding that the evidence did not show that the Veteran's death was due to a service-connected disability. The appellant filed a notice of disagreement to that rating decision in December 2005, and was advised by the RO that her notice of disagreement was not timely and therefore would not be considered. Accordingly, the June 2004 rating decision is final based on the evidence then of record. Id. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108 (West 2002). Because the June 2004 rating decision is the last final disallowance with regard to the appellant's claim, the Board must review all of the evidence submitted since that action to determine whether the appellant's claim should be reopened and readjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). If new and material evidence is presented with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. 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. "New" evidence means existing evidence not previously submitted to VA. "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. See 38 C.F.R. § 3.156(a) (2012). The appellant filed her present claim to reopen the issue of entitlement to service connection for the cause of the Veteran's death in January 2007. In an April 2007 rating decision, the RO denied the appellant's claim, finding that new and material evidence had not been submitted to reopen her claim. The appellant filed a notice of disagreement in June 2007. In June 2007, the RO issued another rating decision, which denied service connection for the cause of the Veteran's death on the merits. The appellant noted her continued disagreement in a July 2007 statement. The RO issued a third rating decision in July 2007, finding that the appellant's claim could not be reopened, as she had not submitted new and material evidence. She submitted a statement in July 2007, maintaining that she disagreed with the July 2007 rating decision. The RO issued a statement of the case in June 2008, which reopened the claim, but denied it on the merits. The appellant perfected her appeal in August 2008. In November 2009, the RO issued a supplemental statement of the case denying the appellant's claim to reopen the issue of entitlement to service connection for the cause of the Veteran's death. Although, in its June 2008 statement of the case, the RO determined that new and material evidence was presented to reopen the claim of entitlement to service connection for the cause of the Veteran's death, that decision is not binding on the Board. Regardless of what the RO has done in this case, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1383 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7104(b) (West 2002). Thus, the Board must first decide whether evidence has been received that is both new and material to reopen the claim. Barnett, 83 F.3d at 1384; McGinnis v. Brown, 4 Vet. App. 239 (1993) (finding that Board reopening is unlawful when new and material evidence has not been submitted). After thorough consideration of the evidence in the claims file, the Board concludes that the appellant's claim to reopen the issue of entitlement to service connection for the cause of the Veteran's death must be denied as a matter of law. In April 2009, the RO issued a proposed administrative decision concluding that the appellant furnished false and fraudulent evidence in the prosecution of her claim for service connection for the cause of the Veteran's death knowingly and with intention to receive benefits not legally due to her. Specifically, the RO found that a June 1943 casualty report signed by Lieutenant J.T.; an affidavit executed by B.A. in October 1973; an undated certification signed by Captain A.N.C.; a medical certification signed by Lieutenant M.T.; a report of physical examination dated in March 1946; and a form dated in May 1945 were material and false. Thus, the RO recommended that the appellant be charged with violation of 38 U.S.C.A. § 6013(a). The appellant was provided with notice of that administrative decision in April 2009. A June 10, 2009 final administrative decision issued by the RO concluded that the evidence of record was sufficient to warrant submission of the appellant to the Director of the Compensation and Pension Service for a determination as to whether she committed fraud and forfeited her eligibility for VA benefits on that basis. On June 25, 2009, the Compensation and Pension Service issued a forfeiture decision, finding that, pursuant to 38 U.S.C.A. § 6103(a), the appellant forfeited all rights, claims, and benefits to which she might otherwise be entitled under the laws administered by the Department of Veterans Affairs because she submitted fraudulent documents in support of her claim for entitlement to service connection for the cause of the Veteran's death. In October 2009, the appellant filed a notice of disagreement to the June 2009 forfeiture decision. In April 2010, the appellant appeared at a hearing before the Board. The appellant's representative argued that the documents submitted in support of the appellant's claim were not fraudulent, and requested that she be granted compensation benefits. In April 2011, the Board remanded the appellant's claim for the issuance of a statement of the case on the issue of whether the June 2009 forfeiture decision was proper. The Compensation and Pension Service issued a statement of the case in August 2012, affirming the June 2009 forfeiture decision. However, the appellant did not file a timely substantive appeal in response to the August 2012 statement of the case; accordingly the issue of the propriety of the June 2009 forfeiture decision is not before the Board at this time, and the June 2009 forfeiture decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. Section 6103 provides that whoever knowingly makes a false or fraudulent affidavit, or submits other false or fraudulent evidence 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.901(a) (2012). As entitlement to compensation benefits based on service connection for the cause of the Veteran's death when the spouse seeking compensation benefits is the one who is found to have committed the fraud is not within the narrow range of exceptions to the benefits subject to forfeiture under 38 U.S.C.A. § 6103, entitlement to this benefit is statutorily barred in the present case. In the absence of evidence that the appellant's forfeiture of VA benefits based on a finding of fraud has been revoked, the Board finds that the claim to reopen the issue of entitlement to service connection for the cause of the Veteran's death must be denied as a matter of law. See Cacalda v. Brown, 9 Vet. App. 261 (1996) (holding that where the law, and not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement); see also See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The claim to reopen the issue of entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs