Citation Nr: 1308499 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 11-20 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Eligibility for the one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Appellant served on active duty in the United States Navy from May 1941 to January 1946 . This matter comes to the Board of Veterans' Appeals (Board) from a May 2010 decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in July 2010, a statement of the case was issued in May 2011, and a substantive appeal was received in July 2011. 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. The Appellant served with the United States Navy from May 1941 to January 1946. 2. In a February 1957 decision, the Board determined that the Appellant knowingly made false statements concerning a claim for benefits, thereby forfeiting all rights, claims and benefits to which he might otherwise be entitled. 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 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203, 3.901 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126) redefined VA's duty to assist claimants in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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, resolution of the Appellant's claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits and qualifying service under the FVEC. 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). II. Factual Background and Legal Analysis 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 FVEC, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . ." However, nothing in the 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 (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. 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. 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). '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. That 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 or the 'clear and convincing evidence' standard required to show actual employability in reducing a rating of 100 percent. Trilles v. West, 13 Vet. App. 314 (2000); 38 C.F.R. §§ 3.306(b); 3.343(c). VA must determine whether the evidence establishes beyond a reasonable doubt that the appellant knowingly made or caused to be made false or fraudulent statements concerning a claim for benefits. The determination of whether the appellant knowingly submitted false or fraudulent evidence to VA is a question of fact. Macarubbo v. Gober, 10 Vet. App. 388 (1997). Whoever knowingly makes a false or fraudulent affidavit 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); 38 C.F.R. § 3.901(a). Forfeiture will not be declared until an individual has been notified by VA of the right to present a defense and notice of the specific charges, a detailed statement of the evidence supporting the charges, citation and discussion of the applicable statute, the right to submit a statement or evidence within 60 days either to rebut or explain, and the right to a hearing within 60 days. 38 C.F.R. § 3.905(b). The burden of proof is upon VA to show that forfeiture is supported by the evidence beyond a reasonable doubt. Trilles v. West, 13 Vet. App. 314 (2000). In November 2009, the Appellant claimed entitlement to a one-time payment from the FVEC fund. While the Appellant may have qualifying service, in July 1956, the VA Central Committee on Waiver and Forfeitures, determined that the Appellant knowingly made and presented false and fraudulent statements concerning the disability compensation application of D.C., a fellow soldier. This decision stemmed from a VA investigation which determined that in July 1951 the Appellant submitted a falsified Affidavit in support of D.C.'s claim for compensation, and thereafter he provided false statements at a February 15, 1955 deposition. The following day, the Appellant admitted to providing false statements in the Affidavit and deposition. Thus, the Committee on Waiver and Forfeitures determined that the Appellant's rights to VA benefits was forfeited. The Appellant filed a timely appeal to the Board. In a February 1957 decision, the Board found that the evidence established beyond a reasonable doubt that on and after July 30, 1951 the Appellant knowingly made false statements concerning a claim for benefits, thereby forfeiting all rights, claims and benefits which he might otherwise be entitled, pursuant to Section 15, Public No. 2, 73rd Congress. The decision of the Board is final. 38 U.S.C. § 4005(c) (1952); 38 C.F.R. § 19.2 (1956). Correspondence from the Appellant and his son essentially request that the Appellant be granted the benefit sought despite the prior forfeiture action. Unfortunately, the Appellant does not legally qualify for a one-time payment from the FVEC fund. Again, 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. The Board observes that it is clear that the FVEC fund is 'administered' by the VA Secretary. 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). 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. Based upon the evidence presented, the Appellant cannot collect benefits as a matter of law. 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. ORDER The Appellant is not eligible for the one-time payment from the FVEC Fund; the appeal is denied. ____________________________________________ M.G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs