Citation Nr: 1323399	
Decision Date: 07/23/13    Archive Date: 08/01/13

DOCKET NO.  11-29 571	)	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 (FVEC) fund.


WITNESSES AT HEARING ON APPEAL

Appellant and daughter


ATTORNEY FOR THE BOARD

Jennifer Hwa, Counsel





INTRODUCTION

The appellant alleges that he had recognized guerrilla service from October 17, 1943 to February 20, 1946.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

The appellant testified before a Decision Review Officer in December 2011 and at a travel board hearing before the Board in June 2013.  A copy of the transcripts of these hearings are included in the claims file.  

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 

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

Legal entitlement to a one-time payment from the FVEC fund is barred as a matter of law, as the appellant has forfeited all rights, claims, and benefits administered by VA.


CONCLUSION OF LAW

The requirements for eligibility to a one-time payment from the FVEC 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 FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

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). 

Nevertheless, in Manning v. Principi, 16 Vet. App. 534 (2002) (citing Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001) (en banc)), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive in the matter.  In the case at hand, the appellant has been found to have forfeited all rights, claims, and benefits administered by VA.  Under the circumstances, there is no possibility that the appellant's claim for benefits might be substantiated.  Accordingly, further consideration of the provisions of the VCAA is not necessary in this case.  

Analysis

The appellant seeks a one-time payment from the FVEC Fund under the American Recovery and Reinvestment Act of 2009 (Act), Pub. L. No. 111-5, Section 1002.  In order to qualify for the benefit, there must be affirmative evidence that the claimant is a "veteran" for the purpose of benefits administered by VA, which requires that the claimant have qualifying military service. 

Section 1002(d) of the Act provides that a person is eligible for the payment if he or she had qualifying service defined as service 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; and was discharged or released from service under conditions other than dishonorable. 

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). 

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 March 2009, the appellant claimed entitlement to a one-time payment from the FVEC fund.  However, regardless of whether the appellant has qualifying service, in November 1960, 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 P.T., a fellow soldier.  

This decision stemmed from a VA investigation which determined that in April 1959, the appellant submitted a falsified affidavit in support of P.T.'s claim for compensation.  During a field examination, the appellant admitted to having no knowledge as to the date and manner in which P.T. was injured, that P.T. had not been with him during his mission against the Japanese, and that P.T. had asked him to sign the prepared typewritten affidavit.  The appellant was notified in a June 1960 letter that he had 60 days to to submit evidence or a statement of denial of the charges of fraud, and that he could also request a hearing within the 60-day period.  However, the appellant did not respond to this letter.  Thus, in a November 1960 decision, the Committee on Waiver and Forfeitures determined that the evidence established beyond a reasonable doubt that on May 20, 1959, the appellant knowingly made false statements, or caused false statements to be made, concerning P.T.'s claim for benefits.  Accordingly, the appellant was found to have forfeited all rights, claims, and benefits administered by VA.  

The appellant has submitted several statements professing his lack of knowledge of the events in 1959 and 1960.  He contends that he did not know P.T. and that his signature to the April 1959 affidavit had been forged.  He also maintained that he had never received the June 1960 informing him of the fraud charges or the November 1960 letter informing him that he had forfeited all rights, claims, and benefits administered by VA.  

Unfortunately, the appellant does not legally qualify for a one-time payment from the FVEC fund.  The Board again 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).  In November 1960, the Committee on Waiver and Forfeitures determined that the appellant had knowingly made false statements, or caused false statements to be made, concerning another veteran's claim for benefits and that he therefore forfeited all rights, claims, and benefits administered by VA.  The November 1960 decision was not appealed by the appellant, became final, and remains in effect.  As such, it is binding upon the Board.  

The Board acknowledges that the RO has not yet contacted the National Personnel Records Center to verify the appellant's contention that he had recognized guerilla service from October 1943 to February 1946.  However, regardless of whether the appellant has qualifying service, he has forfeited all rights, claims, and benefits administered by VA, and is not entitled to a one-time payment from the FVEC fund based upon a lack of entitlement under the law.  Therefore, further remand to verify the appellant's service is not necessary.  See Soyini v. Principi, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran"). 

Inasmuch as the appellant's forfeiture of VA benefits remains in effect, it constitutes a statutory bar to his receipt of any VA benefits, to include benefits from the Filipino Veterans Equity Compensation Fund.  See 38 U.S.C.A. § 6104.  The appellant does not meet the requirements for a one-time payment from the FVEC fund.  Accordingly, his claim for such benefits must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  The Board acknowledges that the appellant has made several arguments regarding the validity of the November 1960 forfeiture decision.  The appellant is advised that if he wishes to challenge the November 1960 forfeiture decision, he needs to file a claim to that effect with the appropriate VA office.


ORDER

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs