Citation Nr: 1322966 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 13 08-201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 notification letter by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT In November 2011, the RO determined that the appellant could not be awarded the FVEC benefit due to fraudulent identity. CONCLUSION OF LAW Requirements for eligibility to a one-time payment from the FVEC fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009); 38 C.F.R. §§ 3.203, 3.901 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the appellant's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). As for the appellant's claim of basic eligibility for a one-time payment from the FVEC Fund, the United States Court of Appeals for Veterans Claims (Court) has held that in cases where the appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated to inform the appellant of the information or evidence necessary to prove the element of veteran status. Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) (as veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of notice concerning proof of veteran status is necessary in most, if not all, cases). Here, the appellant was originally awarded entitlement to a one-time payment from the FVEC Fund by the RO in April 2010 after recognized guerrilla service was verified by the National Personnel Records Center (NPRC). In letters dated in July 2010 and November 2010, the RO explained that it was unable to release the payment until it could confirm the appellant's identity. A subsequent field investigation report dated in January 2011 revealed that the appellant was not the beneficiary/Veteran listed on the title page above but an imposter. In a November 2011 letter, the RO denied the appellant's claim for entitlement to a one-time payment from the FVEC Fund due to his fraudulent identity, notifying him that evidence of record showed he was a different person than the beneficiary/Veteran, S.D.M. Thereafter, the matter was readjudicated by the RO in a February 2013 statement of the case and May 2013 supplemental statement of the case. Here, the issue presented is solely one of statutory interpretation and 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) (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 for a benefit to which the claimant is not entitled as a matter of law). The facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to eligibility for compensation under the FVEC Fund and to fraud. VA's duties to notify and assist are thereby generally inapplicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). For eligible persons who accept a payment from the FVEC Fund, the payment shall constitute a complete release of any claim against the United States by reason of that service. However, nothing in the act prohibits 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 the Act. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). For payments to eligible persons who served in the United States Armed Forces in the Far East during World War II, VA 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 the Act, submitted a claim to VA for benefits under the act. The application for the claim shall contain the information and evidence VA requires. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). An eligible person is any person who 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and was discharged or released from service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012), Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria, 118 F.3d 747. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203 (2012); Soria, 118 F.3d 747. In a timely February 2009 claim, the appellant provided his identifying information and contended that he was eligible for a one-time payment from the FVEC fund. Thereafter, the RO contacted NPRC in order to verify the appellant's service and obtain any available service records. In February 2010, 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 asserted first and last name as the appellant, born in January 1920, had qualifying service between 1944 and 1945. The document also contained a single thumbprint, as well as the subject's name signed in Arabic on the signature line. In April 2011, the RO sent the appellant a letter which stated that he was entitled to compensation from the FEVC Fund. Thereafter, the RO requested a field examination to verify whether the beneficiary was still alive. A June 2010 field examination report indicated that the appellant could not be personally contacted at his given address. The beneficiary was completely unknown to the occupants of the building listed as his given address. One occupant of the building indicated that the beneficiary may have been one of the numerous persons who visited her husband in the last year regarding FVEC claims. The report concluded that no payment of the FVEC claim was recommended due to the beneficiary's whereabouts being unknown, as well as due to the false information submitted to VA concerning the beneficiary's address. In letters dated in July 2010 and November 2010, the RO explained to appellant that it was unable to release the FVEC fund payment until it could confirm his identity as the beneficiary. A report of general information, dated in January 2011 showed that the appellant was contacted by telephone and given a date and time to report for personal interview and identity verification. In January 2011, the appellant was interviewed at the RO and his photograph, specimen signatures, and fingerprint impressions were taken. A subsequent field investigation report dated in January 2011 revealed that the appellant was not the beneficiary listed on the title page above but an imposter. Additional investigative details were discussed in the report. It was noted that the beneficiary was supposed to be 91 years old, while the appellant appeared to be approximately 60 years old. While the appellant was able to provide the name of the beneficiary's wife and one of his children, he was unable to provide many other details. The signature and thumbprints provided in January 2011 were noted to be different than the signature and thumbprint on forms provided by NPRC. The investigator recommended that the claim be disallowed since the appellant was an impostor. In a November 2011 letter, the RO denied the appellant's claim for entitlement to a one-time payment from the FVEC Fund because of his fraudulent identity, notifying him that evidence of record showed he was a different person than the beneficiary/Veteran S.D.M. beneficiary who may be considered eligible for this payment). The RO noted that the appellant was unable to provide information on his military service history and his personal circumstances during the January 2011 interview. It was further indicated that the thumb mark that was in VA files appeared markedly different form the thumb mark obtained from the appellant during the January 2011 interview. During the January 2011 interview and in his July 2012 notice of disagreement, the appellant explained that he could not sign in Arabic, that a coordinator had signed the service form, and that his military service records did not contain a thumbprint. The appellant submitted additional documents attempting to identify himself as the beneficiary/Veteran in 2012 and 2013. Those documents included an affidavit of the appellant's identity as the beneficiary signed by a notary public, a copy of an affidavit for Philippine Army Personnel for the beneficiary that did not contain a thumbprint, a certificate of live birth for the beneficiary, and an affidavit from two disinterested parties identifying the appellant as the beneficiary/Veteran. The Board does not find the appellant credible based on a cumulative review of the record. The totality of the evidence, specifically the RO's field investigation findings concerning the discrepancy in the thumbprint shown in the documents obtained during the field investigation interview and the official service records forwarded with the certification from 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 interview, support a conclusion that the appellant is not the same individual as identified in the documents obtained from NPRC. Based on the foregoing, the Board finds that the appellant does not legally qualify for a one-time payment from the FVEC fund due to fraudulent identity. 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 VA, shall forfeit all rights, claims, and benefits under all laws administered by VA. 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 VA 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 VA a claim for benefits under this section. The application for the claim shall contain such information and evidence as VA may require. The distribution of payments from the FVEC fund is administered by VA. In this case, the appellant has forfeited all rights, claims, and benefits under all laws administered by VA due to fraudulent identity. 38 U.S.C.A. § 6103(a) (West 2002); 38 C.F.R. § 3.901(a) (2012). Thus, the appellant is not entitled to a one-time payment from the FVEC fund. As the law is dispositive in this case, the matter on appeal must be terminated or denied as without legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs