Citation Nr: 1328330 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 12-07 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been submitted to reopen the adjudication of forfeiture of Department of Veterans Affairs (VA) benefits. WITNESSES AT HEARING ON APPEAL Appellant and the appellant's daughter ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had beleaguered status from December 16, 1941 to April 8, 1942; he was missing from April 9, 1942, to April 12, 1942; he was a prisoner-of-war (POW) from April 13, 1942, to August 26, 1942; he was missing from August 27, 1942, to September 25, 1942; he was in a no casualty status from September 26, 1942, to June 24, 1945; he was in the Regular Philippine Army from June 25, 1945, to March 31, 1946. The service department further certified that the appellant was discharged with no recognized guerrilla service. The appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal of December 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The appellant and her daughter testified before a Decision Review Officer (DRO) of the RO in November 2011 and a transcript of that hearing is on file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Historically, and as will be factually explained in greater detail, the appellant re-applied to reopen a claim for service connection for the cause of the Veteran's death in October 2002 and submitted duplicate copies of some documents. She was notified in November 2002 of the denial of reopening but filed a notice of disagreement (NOD), dated in May 2003 and received in June 2003; and after a statement of the case (SOC) was issued in June 2004, her substantive appeal, VA Form 9, was received in July 2004, perfecting the appeal. See generally 38 U.S.C.A. § 7105(a), (b)(1), (d)(3) (West 2002 & Supp. 2012)); 38 C.F.R. §§ 20.200, 20.302(a) and (b) (2012). However, the case was never forwarded to the Board because in October 2007 the appellant was notified of a final decision of forfeiture by the VA Director of Compensation and Pension Service which found that she had intentionally and knowingly submitted a fraudulent affidavit in attempting to obtain VA death benefits. Once the determination of forfeiture was made and the appellant was barred from receipt of VA benefits, the Board was deprived of jurisdiction to adjudicate whether new and material evidence had been received to reopen the claim for service connection for the cause of the Veteran death because, even assuming that there was such new and material evidence, the appellant was barred from receiving such VA death benefits (and the claim did not involve insurance benefits). Stated in other terms, for the Board to have adjudicated whether new and material evidence had been received to reopen the claim for service connection for the cause of the Veteran's death would have been an exercise in futility because no allowance of the application to reopen, or even the underlying cause of death claim on the merits, would have resulted in an award of any compensation benefits to the appellant. Here, once the appellant's potential eligibility for VA benefits (other than insurance benefits) was forfeited due to fraud, the November 2002 rating decision denying reopening of the claim for service connection for the cause of the Veteran's death was no longer appealable because the appellant's basic eligibility for such benefit was barred. 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. In an October 2007 forfeiture decision, VA determined that the appellant had forfeited her right to VA benefits because she had submitted a false affidavit in support of a claim for VA benefits. The appellant was notified of that decision and did not appeal that decision. 2. Evidence submitted since the October 2007 forfeiture decision is evidence which was previously submitted and is cumulative or redundant of evidence that was previously submitted, or which does not bear directly and substantially upon the specific matter under consideration, or which, either by itself or in connection with evidence previously assembled, is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW The evidence received since the October 2007 decision determining that any possible appellant entitlement to VA benefits were subject to forfeiture under 38 U.S.C. § 6103(a) is not new and material; the October 2007 forfeiture decision remains final and is a legal bar to the VA benefit which is sought. 38 U.S.C.A. § 5108, 6103(a) (West 2002); 38 C.F.R. § 3.156(a), 3.901(a) and (b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes on VA a obligation to notify claimants what information or evidence is needed for claim substantiation prior to an initial unfavorable decision but, if not, any such error may be cured by providing notice followed by readjudication Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. The VCAA imposes a duty to inform a claimant of all elements of a claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Also, the VCAA imposes a duty to assist claimants by making reasonable efforts to get needed evidence. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 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). The RO provided the Veteran with notice of the elements required for revocation of forfeiture and of the respective evidence gathering duties by letter in October 2010, prior to the initial December 2010 adjudication of the claim. Specifically, she was informed that she had to submit new and material evidence establishing that she had not committed fraud in a prior application for VA benefits. Accordingly, the Board finds that VA satisfied its duties to notify the Veteran in this case. As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records for claim substantiation. As will be made clear, at the RO hearing before a DRO inquiries were made as to the nature of the fraudulent document which was submitted in conjunction with a prior claim and which had been the basis for the prior determination that fraud had been committed and which had been determined to be a bar to the receipt of VA benefits. The appellant and her daughter testified in support of her application to reopen revocation of VA benefits at a November 2011 RO hearing before a DRO. Bryant v. Shinseki, 23 Vet. App. 488 (2010) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer who chairs 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, questioning at the hearing focused on the elements for claim substantiation. The DRO specifically sought testimony from the Veteran as to the needed element for revocation of forfeiture, i.e., that the appellant had not knowingly submitted a fraudulent joint affidavit when she had previously sought to reopen a claim for service connection for the cause of the Veteran's death. The appellant's testimony consisted of merely denying having any recollection of having submitted such a document. While the DRO did not specifically suggest the submission of any evidence that may have been overlooked, this case turns upon whether the appellant knowingly submitted a fraudulent document in support of a prior claim. This was pointed out to the appellant by the DRO on several occasions. Any evidence pertaining thereto would be uniquely within the sole knowledge of the appellant. Her denial of having any recollection of having knowingly submitted a fraudulent document essentially precludes the potential existence of any other possible corroborating evidence. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has she identified any prejudice in the conduct of the RO hearing. Thus, the Board finds that, consistent with Bryant, Id., the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. As there is neither an indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board finds these actions have satisfied VA's duty to assist and that no additional assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Background Service connection for the cause of the Veteran's death was denied in a May 1994 rating decision and the appellant was notified thereof by letter that same month but she did not appeal that decision. Reopening of the claim for service connection for the cause of the Veteran's death was denied in June 1998 and although the appellant was notified thereof by letter that same month she did not appeal that decision. The appellant submitted a joint affidavit, dated in January 2001, from two service comrades of the Veteran which purports to attest that the Veteran had swelling of bodily parts, especially his lower extremities, in addition to having beriberi heart disease, malnutrition, and ulcers. The appellant did not appeal a January 2001 decision, of which she was notified that same month, which again denied reopening of the claim for service connection for the cause of the Veteran's death. The appellant did not appeal a July 2002 decision, of which she was notified in August 2002, which again denied reopening of the claim for service connection for the cause of the Veteran's death. The appellant then applied yet again to reopen the claim for service connection for the cause of the Veteran's death in October 2002. She submitted duplicate copies of some documents. The appellant was notified in November 2002 of the denial of reopening of the claim for service connection for the cause of the Veteran's death. She filed a notice of disagreement (NOD), dated in May 2003 and received in June 2003, to the denial of reopening. Thereafter, a statement of the case (SOC) was issued in June 2004 addressing that issue and a substantive appeal, VA Form 9, was received in July 2004. A May 2006 report of a VA Field Investigation, in conjunction with evidence submitted in support of a claim for service connection for the cause of the Veteran's death, shows that a joint affidavit had been submitted which was signed by two individuals attesting that the Veteran had had swollen lower extremities while a POW. When the appellant was interviewed she at first indicated that she had no knowledge of the procurement of the joint affidavit but after a long discussion she admitted that she had personally requested and procured the affidavit from the affiants. Also, the appellant's son was interviewed and substantially corroborated the appellant's statement that she had procured the joint affidavit. He stated he had personal knowledge of the circumstances surrounding the procurement of the affidavit. In a June 2007 letter the appellant asked for forgiveness for previously submitting the joint affidavit, stating that she knew it was "wrong to tell a lie" but she had no inkling that the results would be so serious. In July 2007 the RO submitted an administrative decision to the VA Director of Compensation and Pension Service for consideration of forfeiture. In October 2007 the appellant was notified of a final decision of forfeiture by the VA Director of Compensation and Pension Service which found that she had intentionally and knowingly submitted a fraudulent affidavit in attempting to obtain VA death benefits. She had misrepresented the contents of the affidavit to one affiant who was unable to read due to poor vision and the family of the other affiant, who was senile, could provide no corroboration of the appellant's account. Also, the fraudulent affidavit was clearly controverted by the contemporaneous notation of the Veteran in 1988 that he had not had localized edema of the lower extremities. Also, after initially maintaining the integrity of her story the appellant, upon having been informed of the proposed forfeiture, admitted that she had submitted the fraudulent affidavit. The appellant did not appeal the October 2007 forfeiture decision. In September 2011 the appellant applied to reopen the adjudication of forfeiture, stating that she still desired VA death benefits. In support of the application to reopen the revocation of forfeiture, the appellant has submitted a duplicate copy of the Veteran's death certificate and marriage certificate. In VA Form 21-4138, Statement in Support of Claim in October 2010 the appellant stated that she had never intentionally submitted a fraudulent statement in support of her claim for VA death benefits and concerning the forfeiture, she was innocent. At the DRO hearing the appellant testified that she could not remember having submitted false evidence in her previous claim. It was emphasized that the Veteran had been a POW. Law and Regulations Governing Forfeiture VA law states 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); 38 C.F.R. § 3.901(a) and (b). 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 procure 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 the Department of Veterans Affairs (except law relating to insurance benefits). 38 C.F.R. § 3.901(a). Any person who commits such fraud forfeits all rights to benefits under all laws administered by the Department of Veterans Affairs other than laws relating to insurance benefits. 38 C.F.R. § 3.901(b). Analysis As to the matter of forfeiture, the record reflects that in October 2007 the Director of VA's Compensation and Pension Service determined that the Appellant had furnished VA with materially false and fraudulent evidence and statements concerning a claim for VA disability compensation, thereby forfeiting all rights, claims and benefits under all laws administered by the VA Secretary to which the Appellant might otherwise be entitled. The appellant did not initiate, much less perfect, an appeal of that decision, and as a result it is final and binding on her based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. The United States Court of Appeals for Veterans Claims (Court) had held that a claimant who has been determined to have forfeited eligibility for benefits could have a final decision reopened with the submission of new and material evidence. Trilles v. West, 13 Vet. App. 314, 325 (2000) (stating "[w]e now hold that a VA benefits recipient or claimant who has been the subject of a final decision declaring forfeiture of eligibility for VA benefits may have that final decision reopened upon the presentment of new and material evidence or revised based on a finding of CUE [clear and unmistakable error] in the original forfeiture decision."). See also Reyes v. Brown, 7 Vet. App. 113, 114- 15 (1994) and Villaruz v. Brown, 7 Vet. App. 561 (1995). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). The claimant does not have to demonstrate that the new evidence would probably change the outcome of the prior denial. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). A determination of whether there is new and material evidence to reopen a claim requires consideration of the evidence submitted or otherwise obtained since the last final and binding denial of the claim, irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). In Shade v. Shinseki, 24 Vet. App. 110 (2010) the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist, which might raise a reasonable possibility of substantiating the claim. In other words, 38 C.F.R. § 3.156(a) establishes a "low threshold" for reopening a claim, one requiring the submission of evidence that is new, material, and raises a reasonable possibility of substantiating the claim. That is to say, there are two, not three, requirements for reopening a claim. If VA determines there is new and material evidence, it may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been satisfied. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed.Cir. 2000)). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In determining whether evidence is new and material, VA must review all of the evidence received since the last final and binding decision to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). And for the limited purpose of determining whether new and material evidence has been received, the evidence in question will be presumed credible. See Justus v. Principi, 3 Vet. App. 510 (1992); see also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or to blindly accept as true assertions that are beyond the competence of the person making them). However, the "benefit of the doubt doctrine" does not apply to the preliminary question of whether new and material evidence has been received to reopen a claim. Martinez v. Brown, 6 Vet. App. 462, 464 (1994); 38 U.S.C.A. § 5107(b). Evidence received since the October 2007 forfeiture decision consists, in part, of duplicate copies of the Veteran's service records, marriage certificate, and death certificate. Because these were previously on file they are not new. The Board notes that the presumption of credibility afforded to "new" evidence for the purpose of reopening a claim, as provided by the Court's holding in Justus v. Principi, 3 Vet. App. 510, 513 (1992), is not at issue concerning the appellant's argument that she had no knowledge of having previously submitted a false joint affidavit because this argument is not "new" evidence. Rather, her argument is a recitation of an argument which had already been rejected by the VA Director of Compensation and Pension Services who rendered the forfeiture decision that the appellant now seeks to reopen. See Reonal v. Brown, 5 Vet. App. 458, 461 (1995) (presumption of credibility of the evidence does not arise where the issue involved is a recitation of matters which had already been rejected by the prior final decision). Thus, her recitation now of a matter already considered and rejected by the VA Director of Compensation and Pension Services in rendering the October 2007 forfeiture decision cannot constitute "new" evidence for the purpose of reopening the forfeiture matter. See Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000) ("According to the plain language of the regulation, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the [previous decisionmakers]."); Smith v. West, 12 Vet. App. 312, 314 (1999) ("If evidence is not new, the inquiry ends and the claim cannot be reopened.") The additional evidence received since that October 2007 forfeiture decision also includes the Appellant's testimony. This consisted simply of her stating that she had no recollection of having submitted false evidence. However, in light of the overwhelming evidence that she had in fact done so, and her prior admission that she had procured false evidence, this new testimony is inherent incredibility and, so, cannot and does not constitute new and material evidence for the purpose of reopening the matter of the revocation of forfeiture. The October 2007 forfeiture decision by the Director of Compensation and Pension Services explained that the Appellant that she had taken an active role in obtaining a false joint affidavit in support of a claim for service connection for the cause of the Veteran's death and, as a result and due to such fraud, she was barred from receipt of any VA benefits. Moreover, she acknowledged her participation in fraudulently obtaining the joint affidavit and even asked for forgiveness, all of which she now seeks to avoid by the expediency of merely denying having any recollections of such event. For the reasons noted above, the Board concludes that the evidence received since the October 2007 decision determining that VA benefits were subject to forfeiture under 38 U.S.C. § 6103 is not new and material; the October 2007 forfeiture decision remains final and is a legal bar to the benefits sought. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). ORDER New and material evidence not having been submitted to reopen a prior revocation of forfeiture of entitlement to VA benefits, the application to reopen is denied. The appeal is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs