Citation Nr: 1335570 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-01 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the Appellant has legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund (FVECF). REPRESENTATION The Appellant is represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Pflugner, Sean G., Counsel INTRODUCTION The Appellant served in the Philippine Scouts of the United States Army from August 1946 to March 1947. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines. This claim was previously before the Board in July 2011, at which time it was denied. The Appellant appealed this decision to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2013 memorandum decision, the Court vacated the Board's July 2011 decision and remanded the claim to the Board. The claim comes before the Board now for additional consideration consistent with the Court's February 2013 memorandum decision. In the February 2013 memorandum decision, the Court observed that, in the July 2011 decision, the Board referred to the Agency of Original Jurisdiction a reasonably raised issue of whether new and material evidence has been received to reopen a claim for revocation of forfeiture of VA benefits due to fraud. The Court then determined that the issue as to whether the Appellant has legal entitlement to a one-time payment from the FVECF (that was denied in the July 2011 Board decision and appealed to the Court by the Appellant) was inextricably intertwined with that reasonably raised issue. Thus, the Court determined that the two issues should be contemporaneously adjudicated. Accordingly, the Court vacated the Board's July 2011 decision and remanded to the Board the issue of whether the Appellant has legal entitlement to a one-time payment from the FVECF. During the period of time following the July 2011 Board decision and prior to the Court's February 2013 memorandum decision, the RO developed and adjudicated the reasonably raised and referred issue of whether new and material evidence has been received to reopen a claim for revocation of forfeiture of VA benefits due to fraud, which was denied in an October 2011 administrative decision. In December 2011, the Appellant timely submitted a notice of disagreement with the October 2011 denial. In September 2012, the RO issued a statement of the case. Following the September 2012 statement of the case, the Appellant submitted neither a timely substantive appeal nor new and material evidence during the subsequent appellate period. 38 C.F.R. § 3.156(b) (2013). As such, the Board finds that the Veteran did not perfect an appeal of the October 2011 administrative decision. Consequently, the Board finds that the issue of whether new and material evidence has been received to reopen a claim for revocation of forfeiture of VA benefits due to fraud is no longer pending before VA, as the October 2011 administrative decision is final. The Board acknowledges that the Appellant submitted evidence directly to the Court, dated-stamped as received in April 2012. Although it appears as though this evidence was not available to the RO for consideration prior to issuing the September 2012 statement of the case, the Board finds that it was not pertinent to the issue addressed therein, that being whether new and material evidence has been received to reopen the issue of revocation of forfeiture of VA benefits due to fraud. Thus, the RO's inability to consider this evidence was not prejudicial to the Appellant. Additionally, the Appellant submitted evidence directly to the Board, date-stamped as received in August 2013, without a contemporaneous waiver of RO review. This evidence is not pertinent to the above-captioned claim because, as will be discussed in the body of the decision below, the law is determinative as to the disposition of the claim, and the evidence received in August 2013 does not alter the application of the law. Thus, no waiver of RO adjudication is required prior to addressing the Appellant's claim of entitlement to a one-time payment from the FVECF. See 38 C.F.R. § 20.1304 (2012). Further, neither the evidence received by the Court in April 2012 nor the evidence received by the Board in August 2013 reasonably raises a new claim regarding the issue of whether new and material evidence has been received to reopen a claim for revocation of forfeiture of VA benefits due to fraud. Consequently, the Board is not referring such a claim to the RO herein. Given that the October 2011 administrative decision is final and the issue of whether new and material evidence has been received to reopen a claim for revocation of forfeiture of VA benefits due to fraud is no longer pending before VA, the Board finds that it may, consistent with the Court's February 2013 memorandum decision, adjudicate the Appellant's claim of whether he has legal entitlement to a one-time payment from the FVECF. 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 a December 1972 decision, the Veterans Administration Compensation and Pension Service declared that the Appellant had forfeited all rights, claims, and benefits to which he might otherwise be entitled. The RO most recently denied reopening a claim regarding the revocation of the forfeiture of VA benefits in an October 2011 administrative decision. The October 2011 decision is final. CONCLUSION OF LAW The requirements for eligibility to a one-time payment from the FVECF are not met. 38 U.S.C.A. § 5101 (a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act, Section 1002, Pub. L. No. 111-5 (Enacted February 17, 2009); 38 C.F.R. § 3.203 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). There is no factual dispute as to whether the Veterans Administration Compensation and Pension Service declared that the Appellant had forfeited all rights, claims, and benefits to which he might otherwise be entitled in a December 1972 decision, which is the determining factor in this appeal. Consequently, the above-cited statutory and regulatory provisions pertaining to VA's duties to notify and to assist do not apply to this claim as the resolution is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Historically, the Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt. Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that many of those who served in the Philippine Islands during World War II did not have qualifying active service for the purpose of receiving VA benefits. 38 U.S.C.A. § 107 (West 2002). The particular benefit claimed originated on February 17, 2009 with the American Recovery and Reinvestment Act (Act), to promote job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization. Pub. L. No. 111-5, 123 Stat. 115 (2009). That legislation established the FVECF, which provides one-time payments to eligible persons. Pub. L. No. 111-5, § 1002, 123 Stat. 115 (2009). Generally, an eligible person is defined as any person who served 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 dated July 26, 1941. That includes any person who served in military units such as the 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; and any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). Also, the person must have been discharged or released from service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115 (2009). Findings by the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992). Moreover, where the United States service department does not certify the claimant's alleged service in the Philippine Army, VA cannot consider his claim for Veterans' benefits based on that service. Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997). As a foundational matter, the Act directs VA to administer the provisions in a manner consistent with applicable provisions of Title 38 of the United States Code, and other provisions of law, and shall apply the definitions in 38 U.S.C.A. § 101 in the administration of the provisions, except to the extent otherwise provided. Pub. L. No. 111-5, § 1002, 123 Stat. 115 (2009). Specifically, VA is authorized by statute to prescribe regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under the laws administered by VA. 38 U.S.C.A. § 501(a)(1) (West 2002). In a December 1972 decision, the Veterans Administration Compensation and Pension Service declared that the Appellant had forfeited all rights, claims, and benefits to which he might otherwise be entitled, finding that he knowingly submitted false or fraudulent evidence in support of his claim of entitlement to service connection for pulmonary tuberculosis. 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) (2013). In such cases, 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). Whoever knowingly makes a false or fraudulent affidavit concerning any claim for benefits under the laws administered by VA (except for insurance benefits) shall forfeit all rights, claims, and benefits under all laws administered by VA (except insurance benefits)? 38 U.S.C.A. § 6103(a); 38 C.F.R. § 3.901(a). 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, 13 Vet. App. At 320-22. The Appellant claims he is entitled to a one-time payment from the FVEC fund. The evidence or record demonstrated that he had honorable service in the Philippine Scouts of the United States Army from August 1946 to March 1947. However, as discussed above, in a December 1972 decision, the Director of the Veterans Administration Compensation and Pension Service found that the Appellant had forfeited all rights to claims and benefits under laws administered by the VA under 38 U.S.C.A. § 3503(a) (1972). See 38 U.S.C.A. § 6103(a). The decision stated that the Appellant knowingly, intentionally, and deliberately made, presented, and/or caused to be furnished to the VA, materially false and fraudulent statements and evidence in support of his reopened claim for service-connected disability compensation for pulmonary tuberculosis. A December 1973 statement of the case confirmed the forfeiture of benefits. The Appellant did not file a substantive appeal following the December 1973 statement of the case and, thus, the December 1972 decision became final. The Appellant subsequently filed several claims to reopen the issue of revocation of forfeiture of VA benefits due to fraud, which were denied, to include most recently in an October 2011 administrative decision. Although the Appellant submitted a timely notice of disagreement with the October 2011 decision, he did not perfect an appeal to the Board. Consequently, the October 2011 decision became final. 38 U.S.C.A. §§ 7104, 7105. Concerning the most recent denial of the claim to reopen the issue of revocation of forfeiture of VA benefits due to fraud, during the pendency of the appeal with respect to the above-captioned claim, the Appellant contended that the medical document that was found fraudulent in the December 1972 decision by the Director of Compensation and Pension Services was genuine because the signature of the doctor was not verified. (See February 2010 Decision Review Officer Hearing Transcript (Tr.) at p. 2). In the July 2011 Board decision (which has since been vacated by the Court), the Board found that the Veteran's contentions reasonably raised a claim to reopen the issue of revocation of forfeiture of VA benefits due to fraud. Consequently, the Board referred said claim to the RO for the appropriate development and adjudication. This issue was denied in an October 2011 administrative decision (a decision that it is now final) and is no longer pending before VA. The Board finds that the Appellant does not legally qualify for a one-time payment from the FVECF. The Board 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). 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 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 Secretary may require. The Board observes that it is clear that the FVECF is administered by the Secretary. VA has determined that the Appellant 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 FVECF is administered by the Secretary. Therefore, the Appellant is not entitled to a one-time payment from the FVECF. In this case, the law is dispositive. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Appellant does not meet the basic eligibility requirements for a one-time payment from the FVECF given the December 1972 determination that he forfeited all rights, claims, and benefits to which he might otherwise be entitled due to fraud. Thus, the Appellant's above-captioned claim must be denied based upon a lack of entitlement under the law. ORDER The Appellant is not eligible for a one-time payment from the FVECF. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs