Citation Nr: 21073300 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 09-22 882 DATE: December 8, 2021 ORDER Eligibility for VA benefits is denied. FINDINGS OF FACT 1. The Appellant is not a veteran for purposes of the Department of Veterans Affairs compensation benefits. 2. Throughout the pendency of the appeal, the Appellant knowingly submitted fraudulent evidence in the pursuit of the Department of Veterans Affairs compensation benefits. CONCLUSION OF LAW The criteria for VA benefits are not met. 38 U.S.C. §§ 501, 1101, 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.1(aa)(2), 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION As will be explained fully in the analysis below, the Appellant is not a military veteran. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from a July 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California. In May 2021, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to reconstruct the record and upload all documentation related to the claim for entitlement to service connection for a low back disability to the electronic claims file, which the VA Regional Office accomplished. In addition, and significant, the Board directed the VA Regional Office contact the VA Office of Inspector General (OIG) and obtain any reports or findings made by the VA OIG regarding the Appellant as there was evidence in the record of suspected fraud. The VA Regional Office accomplished that directive. The case now returns to the Board. Analysis First, to "receive VA benefits, a claimant must be a 'veteran.'" Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Indeed, "[s]tatus as a veteran is one of the five elements of a claim for service connection." Smith v. Shinseki, 24 Vet. App. 40, 44 (2010). A veteran, in turn, "is defined . . . as 'a person who served in the active military, naval, or air service.'" Id. (quoting 38 U.S.C. § 101(2)). Such service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. Id. (quoting 38 U.S.C. § 101(24)). "Active duty for training" is defined as "full-time duty under section 316, 502, 503, 504, or 505 of title 32." 38 U.S.C. § 101(22)(C). By contrast, "[i]nactive duty for training" refers to "duty (other than full-time duty) performed . . . under 32 U.S.C. §§ 316, 502, 503, 504, or 505." 38 U.S.C. § 101(23). Accordingly, in order for the appellant to establish his entitlement to disability compensation benefits, he must first establish his status as a veteran. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). According to a certificate of death associated with this VA claims file, the Veteran, Joaquin Joseph Zavala, died in 1987. Oddly, multiple claims for VA disability benefits were received and granted after his death 1987. The VA OIG opened an investigation in 2013 because an individual using the identification of the deceased Veteran sought treatment at VA medical centers. The VA OIG discovered that the Appellant, Joaquin Murrieta Zavala, was the individual using the deceased Veteran's identification. As found within the claims file, a VA Form 21-4138, Statement in Support of Claim, on November 16, 1992, in which he stated: I was notified by the Department of Veteran's Affairs that I am deceased. Please be advised that I am alive. Attached is a copy of my DD-214 and [California] I.D. Please correct these records showing I am alive as I may be applying for disability pension benefits. . . . The VA OIG's investigation revealed that the Appellant used the deceased Veteran's military discharge information. The VA OIG compared the deceased Veteran's military photograph with the Appellant's PIV (Personal Identity Verification) card and California I.D. The photographs were not the same person. According to the VA OIG's report, the Appellant was interviewed on March 18, 2004, by VA OIG Special Agents, and he admitted to using the deceased Veteran's information. On March 19, 2015, he reported to a VA Police Detective that he never served in the U.S. Marine Corps or any other branch of the U.S. military. Yet, me made contrary assertions to VA OIG Special Agents in February 26, 2004. The VA OIG obtained information from the U.S. Marine Corps Manpower Management Records & Performance Brach, which reported that the Appellant could not be identified as a Marine. In September 2021, VA issued an Administrative Decision determining that the Appellant committed fraud in the pursuit of VA benefits. "Fraud" is defined in VA regulations as "an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining or retaining VA benefits, with knowledge that the misrepresentation or failure to disclose may result in the erroneous award or retention of such benefits." 38 C.F.R. § 3.1(aa)(2). The Board finds that the evidence of record shows the Appellant knowingly engaged in identification theft of the deceased Veteran's information to obtain VA disability benefits, and the Appellant was not a military Veteran as defined by relevant statutes or regulations for VA disability benefits. Accordingly, as the Appellant is not a veteran, eligibility for VA benefits is denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.