Citation Nr: 1315155 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 12-00 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION This appeal comes before the Board of Veterans' Appeals (Board) from a March 2011 decision of the RO in Manila, the Republic of the Philippines. 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). FINDING OF FACT Although the above-named individual is entitled to a one-time payment from the FVEC Fund, the appellant is not the above-named individual, but an impostor who has made and presented a false affidavit concerning his claim for a one-time payment under the FVEC Fund. CONCLUSION OF LAW The claim for a one-time payment from the FVEC Fund lacks legal merit. 38 U.S.C.A. § 501(a)(West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The United States Court of Appeals for Veterans Claims (CAVC) 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 are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231- 32 (2000). In this case, although the above-named individual is entitled to a one-time payment under the FVEC Fund, the appellant is not the above-named individual, but an impostor who has made and presented a false affidavit concerning his claim for a one-time payment under the FVEC Fund. Accordingly, the appellant is legally precluded from obtaining the benefit sought and thus the duty to notify and assist provisions are not applicable to this claim. II. 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 (FVEC). 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." 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 (New) Philippine Scout under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ), Public Law 190, 79th Congress; and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable. In this case, the question before the Board is not whether the above-named individual is entitled to a one-time payment under the FVEC Fund, but whether the appellant is the above-named individual. In fact, the RO granted a one-time payment under the FVEC Fund in an April 2010 decision based on certification that the above-named individual had the requisite service. The RO then notified the appellant that he should meet with a representative of the RO at a designated place for an identification interview in order to receive payment. This was deemed necessary because of the "peace and order problem" in the area. A scheduled field examination took place in June 2010. From that interview, the field examiner determined that the appellant was an impostor. The investigator explained that the appellant appeared with a companion who stated that she was a relative, but who appeared to be giving the appellant the answers to the questions asked. The appellant himself, at first, refused to answer any questions and stated that the examiner should review the already submitted claim. The companion also stated that the appellant did not understand English or Tagalog. However, once the companion was asked to leave the room, the appellant was observed to understand directions given in Tagalog and was able to answer questions in Tagalog. The appellant went on to answer many questions in an inconsistent manner with the originally filed claim and Affidavit for Philippine Army Personnel (F23). The appellant did not know his rank as a guerilla or the name of his commanding officer, though the F23 stated his rank as private and the name of his commanding officer. The appellant gave the incorrect place as to where he had been processed. The appellant's birth date provided on the F23 was not the same as that on his current Postal ID. The names he gave for his mother, father, and wife were not the same as those stated on his claim for benefits. He was able to write in both English and Arabic, whereas his F23 had only a thumbprint. From these inconsistencies, and based upon professional knowledge, the examiner determined that the appellant was an impostor and that the real Veteran could already be deceased. In an April 2011 notice of disagreement, the appellant stated that he had given the correct names for his father and wife, but that he had given his father's religious name and his wife's local name. He explained that his father's religious/baptismal name was given to him after his pilgrimage to Mecca. He explained that his wife's local name was actually a shortened version of the name provided on his original claim. He stated that he had been sick at the time and it was difficult to give an interview. In December 2011, the appellant's son stated that the appellant did not speak English or Tagalog and that because of the language barrier the appellant did not understand the interview. Rather, the appellant spoke the Maranao tribal language. In this case, the Board finds that the appellant is an impostor and therefore he is not legally entitled to FVEC Fund benefits. The Board places great probative weight on the field examiner's determination in that respect. For one, there is a presumption of regularity under which it is presumed that government officials 'have properly discharged their official duties.'" Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926)). In this case, the Board has no reason to doubt the authenticity of the field examiner's assessment, and the appellant has not provided clear evidence that the VA's practices in conducting the interview were irregular. Moreover, in relation to the competency of VA examiners, there is a presumption of the competency of the examiner and the adequacy of the opinion unless a specific challenge is made as to adequacy or competency. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion); Cox v. Nicholson, 20 Vet. App. 563 (2007) (holding that the Board may assume the competency of any VA medical examiner as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Moreover, while the Board is entitled to assume the competency of a VA examiner, the "appellant bears the burden of persuasion to show that such reliance was in error." See Hilkert v. West, 12 Vet. App. 145, 151 (1999), aff'd, 232 F.3d 908 (Fed. Cir. 2000); see also Berger v. Brown, 10 Vet. App. 166, 169 (1997). Here, although the appellant has made arguments as to why the field examiner committed error, those argument are not persuasive to the Board. Rather, the statements, such as that the appellant actually did not understand the interviewer's dialect, or that he gave different yet correct names for his family members, are inconsistent with the record. For one, the field examiner made sure to determine whether the appellant could understand the Tagalog dialect before continuing the interview. Moreover, the Board finds no reason that the appellant would not have provided the same names for his family members on interview that he had provided on his initial application for compensation. In that regard, the RO has since reviewed the appellant's arguments as to why he gave the incorrect names and has found no merit to those arguments. Those questions were basic and vital to the appellant's claim, and the incorrect answers provided are highly questionable. Also of significance, the appellant's Postal ID and his F23 listed different birthdates, and the appellant has not stated why that would be the case. Thus, in placing great weight on the June 2010 field examiner's report, and in finding multiple inconsistencies in the appellant's recount of events, the Board finds that the presumption of regularity and presumption of competency of the VA field examiner have not been rebutted and the claim must be denied. 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). In this case, the Board finds that the appellant has made and presented a false affidavit concerning his claim for a one-time payment under the FVEC Fund, and 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) (2012). 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. ORDER The claim for a one-time payment from the FVEC Fund is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs