Citation Nr: 1326788 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 08-35 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for the revocation of the forfeiture of Department of Veterans Affairs (VA) benefits. 2. Eligibility for the one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. (The issue of whether a December 13, 1977 decision of the Board of Veterans' Appeals (Board) should be revised or reversed on the basis of clear and unmistakable error (CUE) is addressed in a separate decision under a different docket number). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from March 1946 to March 1949. This matter is before the Board of Veterans' Appeals (Board) on appeal from decisions promulgated in July 2007 and July 2009 by the VA Regional Office (RO) in Manila, the Republic of the Philippines. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2012. 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). (The issue of whether the December 1977 Board decision finding the Veteran was not entitled to the revocation of forfeiture of VA benefits was the product of clear and unmistakable error (CUE) is the subject of a separation decision under a different docket number). FINDINGS OF FACT 1. In a December 1977 decision, the Board determined that the Veteran forfeited all rights, claims and benefits to which he might otherwise be entitled under the laws administered by VA. 2. In a separate decision, under a different docket number, the Board has concluded that the December 1977 decision was not the product of CUE. 3. Although the evidence received to reopen the Veteran's claim for revocation of the forfeiture of VA benefits was not previously submitted to agency decisionmakers, it does not relate to an unestablished fact necessary to substantiate the claim, is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence not having been received to reopen the claim of entitlement to revocation of the forfeiture of VA benefits, the benefit sought on appeal is denied. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. The requirements for eligibility to a one-time payment from the FEVC fund are not met. 38 U.S.C.A. §§ 501(a), 6301 (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 CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 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 Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); 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); VAOPGCPREC 5-2004 (July 23, 2004) (VCAA does not require either notice or assistance when the claim cannot be substantiated under the law or based on the application of the law to undisputed facts.). As discussed below, resolution of the Veteran's claim for a one-time payment from the FVEC Fund is wholly dependent the application of law to the undisputed facts. The VCAA is therefore inapplicable and need not be considered in this case. Id. The VCAA is applicable to claims regarding whether new and material evidence has been received to reopen a claim that was the subject of a prior, final decision. The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has held that VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Further, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court established significant requirements with respect to the content of the notice necessary for those cases involving the reopening of previously denied claims. Specifically, the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his or her entitlement to the underlying claim for the benefit sought by the claimant. In this case, the Veteran was sent pre-adjudication notice via letters dated in May 2006 and May 2007, both of which were clearly prior to the initial adjudication of this claim via the July 2007 RO decision. These letters noted the prior determination that the Veteran had forfeited his rights to VA benefits and that new and material evidence was necessary to reopen that claim. In pertinent part, the May 2007 decision summarized the bases for the forfeiture determination, as well as the criteria for new and material evidence by language consistent with the relevant regulatory provisions. Therefore, this notification is consistent with the requirements of Kent for new and material evidence claims. Further, the May 2007 letter summarized what information and evidence the Veteran must submit, what information and evidence will be obtained by VA, as well as the information and evidence used by VA to determine disability rating(s) and effective date(s). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his new and material evidence claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his case has been satisfied. The Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the April 2012 Board hearing, and nothing indicates he has identified the existence of any relevant evidence in light of the Board's determination that the December 1977 Board decision did not contain CUE. Moreover, the nature of this forfeiture case resolves upon whether the Veteran previously submitted fraudulent evidence in support of a claim. As such, there is no reasonable possibility that a medical examination or opinion would support the appeal. With respect to the April 2012 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the testimony of the Veteran focused upon the circumstances upon which the forfeiture decision was made. Thus, even though the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the appellate claims, the Veteran's testimony and other statements of record shows that he had actual knowledge of the elements necessary to substantiate his claim. Further, as noted above, the Board has already determined that the Veteran received adequate notification in this case. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the April 2012 hearing. In fact, at the hearing the Veteran indicated he was satisfied with the conduct of this hearing. See Transcript p. 10. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Analysis - New and Material Evidence 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. Fraud is defined as an act committed in perpetration of one of the above-listed actions. 38 U.S.C.A. § 6103(a); 38 C.F.R. § 3.901. In a December 1977 decision, the Board determined that the Veteran forfeited all rights, claims and benefits to which he might otherwise be entitled under the laws administered by VA. Further, in a separate decision, under a different docket number, the Board has concluded that the December 1977 decision was not the product of CUE. Therefore, that decision is final. See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. The Board notes that in the caselaw established by Villeza v. Brown, 9 Vet. App. 353 (1996), and Tulingan v. Brown, 9 Vet App. 484 (1996), the Court held that where a person seeks revocation of a previously invoked forfeiture of VA benefits, the issue to be addressed is not a question of the submission of new and material evidence with respect to the revocation of the forfeiture, but rather whether the person is shown by a preponderance of the evidence to be a benefits-eligible claimant for VA benefits purposes. However, in Trilles v. West, 13 Vet. App. 314 (2000), the Court expressly overruled, and held that the standard for new and material evidence would apply in this type of claim. Under the pertinent laws and regulations, a claim will be reopened and the former disposition reviewed, despite the finality of a prior decision, if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The December 1977 Board decision found that the Veteran was not entitled to a removal of the forfeiture of VA (then the Veterans Administration) benefits. In making this decision, the Board noted that the Veteran filed an initial claim of service connection for pulmonary tuberculosis in March 1971, indicating he was first treated for this condition in May 1960 by M. V. B., M.D.; that this physician submitted a statement in 1972 to the effect the Veteran had been under his care since 1949 for pulmonary tuberculosis, and that an X-ray was taken at the B. C. Hospital; the Veteran submitted the original X-ray film in May 1974 as well as a statement by the physician certifying that the X-ray was taken of the Veteran at such hospital; the film, No. 151, bearing a date of February 6, 1951, showed what was interpreted by a VA physician as moderately advanced pulmonary tuberculosis, bilateral, with cavitation, left; that the original film was sent to the VA Investigation and Security Service Technical Laboratory for an opinion as to the authenticity of the date of exposure; and it was concluded that the film was a polyester base, which was not available for use until after 1960, and, therefore, the film dated February 6, 1951, could not have been exposed in 1951 as alleged; and service connection was denied for pulmonary tuberculosis by a May 1975 Board decision. Subsequently, an administrative decision was rendered by the Compensation and Pension Services to the effect that the X-ray film which was presented by the Veteran in support of his claim was fraudulent; that the Veteran had deliberately presented false and material evidence for the purpose of establishing service connection for his pulmonary disorder; and, therefore, it was concluded that he should forfeit all rights, claims, and benefits under the laws administered by VA, and that he had been appropriately informed of that determination. The Board further noted the Veteran's contentions that he was not, in fact, responsible for the "mistake" made at the time of the submission of the X-ray; that the physician who certified such X-ray had cleared him of any involvement, and that he should not be responsible therefor. It was also noted that M. V. B., M.D., had submitted a statement to the effect that he personally knew the Veteran had been under his care since October 1949 due to pulmonary tuberculosis, and that an X-ray had been taken; that the X-ray film taken was mixed with other films later exposed when the hospital transferred to its new building; that the X-ray film the physician had submitted with his certification as to the condition of the Veteran's health was erroneously labeled as 1949 film although it was a 1961 film of another person; and that the Veteran did not know of this situation and was not a party responsible in the submission of such film. The physician further stated that the correct film could not now be located because it was destroyed when the hospital was transferred to its new building. In considering these facts, including the Veteran's contentions and the evidence of record, the Board stated that although it recognized the statement subsequently made by the Veteran's physician, it must be noted that the Veteran was totally and completely in control of his claim and in the affirmative prosecution thereof. Moreover, the Board found that, in this case, the nature of the fraud regarding the X-rays must be clearly imputed to the Veteran. Because fraud was directly and singly for the purpose of obtaining benefits to which the Veteran was not entitled, he had been properly found to have forfeited all such benefits. Accordingly, the Board made a conclusion of law that the Veteran, beyond reasonable doubt, knowingly submitted false evidence in his claim for compensation under the laws administered by VA; and that he had forfeited all accrued or future gratuitous benefits under the laws administrated by VA. The evidence received since the December 1977 Board decision includes statements from the Veteran; his testimony and that of his spouse at the April 2012 hearing; post-service medical records; additional records regarding his military service to include records indicating he was a guerrilla prior to his March 1946 to March 1949 period of active duty; and a duplicate copy of the affidavit of M. V. B., M.D., attesting that the Veteran was not a party to the submission of the X-ray. Initially, the Board notes that the affidavit of M. V. B., M.D., was previously of record at the time of the December 1977 decision. Therefore, it is not new and material evidence. Regarding the additional medical records, as well as those pertaining to his service, the Board observes that they were not previously of record. However, the forfeiture in this case was not based upon either the nature of the Veteran's medical condition or his service. Rather, it was based upon the determination that he had submitted fraudulent X-rays dated as having been conducted in 1951. Neither the medical or service records relates to this matter. In other words, this evidence does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for revocation of the forfeiture. In his additional statements and hearing testimony, the Veteran essentially contends that he is not a medical doctor and would not have known that the X-ray in question was fraudulent and did not know it was fraudulent. His spouse provided supporting testimony at the April 2012 hearing. As to the Veteran's statements and hearing testimony, the Board acknowledges that this evidence is "new" to the extent it was not previously of record. Nevertheless, as detailed above, he advanced similar contentions at the time of the December 1977 Board decision, and such contentions were considered in that decision. He has not provided any details that were not advanced and/or considered at the time of that decision. Consequently, the Board finds that this evidence is cumulative and redundant of the evidence of record at the time of the December 1977 decision. The Board acknowledges that the Veteran's spouse provided supporting testimony at the April 2012 hearing. Further, the evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been submitted, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, there is a difference between credibility and competency. In this case, the Veteran's spouse acknowledge at the hearing she first met the Veteran in 1998, years after the circumstances that resulted in the forfeiture. Transcript p. 7. As such, she is not competent to attest to the circumstances of the submission of the X-ray film that resulted in the forfeiture. Her testimony thus does not raise a reasonable possibility of substantiating the claim for revocation of the forfeiture There being no other evidence received which supports the Veteran's application to reopen, the Board finds that even though evidence has been received that was not previously submitted to agency decisionmakers at the time of the December 1977 decision, it does not relate to an unestablished fact necessary to substantiate the claim for revocation of forfeiture, is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has not been received pursuant to 38 C.F.R. § 3.156(a). Inasmuch as new and material evidence has not been received, the Board does not have jurisdiction to consider the underlying claim for revocation of forfeiture or to order additional development. See Barnett v. Brown, 83 F.3d. 1380 (Fed. Cir. 1996). Analysis -- FVEC 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 Veteran 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. As the Board has determined there was no CUE in the December 1977 decision denying revocation of the forfeiture in this case and that new and material evidence has not been received to reopen this claim, the Veteran does not legally qualify for a one-time payment from the FVEC fund. Based upon the evidence presented, the Veteran 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 Veteran 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 New and material evidence not having been received to reopen the claim of entitlement to revocation of the forfeiture of VA benefits, the benefit sought on appeal is denied. A one-time payment from the FVEC Fund is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs