Citation Nr: 0005559	
Decision Date: 02/29/00    Archive Date: 03/07/00

DOCKET NO.  95-09 274A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, 
Philippines


THE ISSUE

Whether the appellant has forfeited eligibility for benefits 
under the laws administered by the Department of Veterans 
Affairs (VA) in accordance with 38 U.S.C.A. § 6103(a) (West 
1991) for having committed fraud in connection with her claim 
for an apportionment of the veteran's VA compensation 
benefits.


ATTORNEY FOR THE BOARD

N. W. Fabian, Counsel


INTRODUCTION

The veteran had active duty from July 1926 to September 1929 
and from October 1929 to August 1935.  This matter comes to 
the Board of Veterans' Appeals (Board) from a February 1997 
determination by the Director of the Compensation and Pension 
Service (CPS) that the appellant, the veteran's surviving 
spouse, had forfeited all eligibility for VA benefits due to 
fraud.  The appellant perfected an appeal of that decision.  


FINDING OF FACT

In a July 1965 deposition the appellant denied having lived 
with any man in the relationship of a husband and wife since 
her separation from the veteran in 1943; she denied having 
had any children by any man other than the veteran; and she 
denied holding herself out to the community as the wife of 
any man other than the veteran, which statements the 
appellant knew to be false.


CONCLUSION OF LAW

The appellant has forfeited all rights, claims, and benefits 
under the laws administered by VA for knowingly making false 
statements concerning her claim for an apportionment of the 
veteran's VA compensation benefits.  38 U.S.C.A. § 6103(a) 
(West 1991); 38 C.F.R. § 3.901 (1999).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Factual Background

The documents in the case file show that the veteran became 
entitled to VA compensation benefits in June 1936 based on 
his service as a Philippine Scout.  In February 1937 he 
married the appellant.  During World War II his compensation 
benefits were suspended, and reinstated after the war.  In 
his January 1946 application to have his compensation 
benefits reinstated, he stated that the appellant was living 
with another man.

In an October 1948 dependency affidavit the veteran's mother 
stated that the veteran was married.  A November 1948 letter 
from the RO to the veteran references a dependency 
certification by the veteran, which does not appear to be of 
record, in which the veteran stated that he and his spouse 
were separated.  In a November 1948 letter to the appellant, 
the RO informed her that as a separated spouse she could be 
entitled to an apportionment of the veteran's compensation 
benefits.  In a December 1948 letter the veteran stated that 
he had lost track of his wife and knew nothing about her 
whereabouts since August 1943, but that he would agree to an 
apportionment of his compensation benefits if she was 
located, unless she had married someone else.  An April 1949 
letter from the RO to the veteran indicates that attempts to 
locate the appellant had failed.

In May 1959 the appellant initially claimed entitlement to an 
apportionment of the veteran's compensation benefits.  In a 
May 1959 affidavit she stated that she and the veteran were 
married in February 1937, and that they lived together until 
1942, at which time they separated due to the veteran's 
cruelty; that after they separated she was dependent on her 
parents and relatives for support; that she and the veteran 
were still on good terms with one another; that she had not 
contracted marriage with anyone following their separation; 
and that the veteran had not provided her with any support.  
She also submitted affidavits from two other individuals to 
the same effect.  In her May 1959 dependency questionnaire 
she stated that she and the veteran had both been married 
only once, and that they had separated in 1942 due to his 
cruelty.

In June 1959 the RO awarded the appellant an apportionment of 
the veteran's VA compensation, and both parties were notified 
of the apportionment at that time.  In July 1960 the veteran 
reported that the appellant had been living with another man 
in a husband and wife relationship since 1943, and that she 
had borne several children by that man.  He was asked to 
submit evidence in support of his allegations.

In a June 1962 letter the veteran requested that the 
apportionment being paid to his estranged wife be terminated.  
He stated that while he was fighting the Japanese during 
World War II the appellant returned to their home town to 
live with her family.  While living with her family she met 
another man, and began living with him as husband and wife.  
He stated that he went to their home town and tried to 
persuade her to return to the mountains with him, but that 
she refused.  He also stated that after he was separated from 
service he returned to their home town to find his wife, but 
that she, her family, and the man with whom she had been 
living had left town to an unknown destination.  He submitted 
two affidavits in support of his contentions.

In a June 1962 affidavit an individual with the initials of 
R.D.R. stated that she personally knew the appellant, that 
the appellant had visited her home in November 1961 with a 
man, other than the veteran, whom she introduced as her 
husband; and that she reported having lived with this man 
since 1943.  In another June 1962 affidavit the veteran's 
adopted son, R.A., stated that he personally knew the 
appellant, she being the wife of his adoptive father; that he 
had not seen his "adoptive mother" since 1943, when she left 
town; and that in November 1961 he met the appellant at the 
home of his aunt, at which time she introduced a man other 
than the veteran as her husband.

In an October 1962 affidavit R.D.R. again stated that the 
appellant had visited her home late in 1961 and introduced 
another man as her husband.  She also stated that the 
appellant had told her that she had three children by the man 
whom she introduced as her husband.  

In November 1962, as the result of an RO field examination, 
the apportionment being paid to the appellant was suspended 
because her whereabouts could not be determined.

In March 1965 the appellant requested that her apportionment 
of the veteran's compensation benefits be reinstated.  A 
field examination was conducted for the purpose of 
determining whether she had lived with another man as husband 
and wife since her separation from the veteran.  In a July 
1965 affidavit she stated that she and the veteran were 
married in 1937 and separated in 1942 or 1943 due to the 
veteran's physical cruelty.  When asked whether she had lived 
with another man as husband and wife since her separation 
from the veteran, she stated "no."  When asked whether she 
had become pregnant or borne children by another man, she 
stated "no."  When asked whether she had represented herself 
as the wife of any man or performed the duties of a wife to 
another man, she stated "no."  She stated that she was known 
in the community as the separated wife of the veteran.  When 
asked whether she knew a man whose initials were C.M., the 
man with whom she had been reported to have lived as man and 
wife, she stated that she knew him but denied having lived 
with him.  When told that VA had received information 
indicating that she had lived with C.M. and had three or four 
children by him, she denied having lived with any man as 
husband and wife or borne children by any man.  

In a September 1965 affidavit an individual who knew both the 
veteran and the appellant stated that they had separated 
during the Japanese occupation due to the veteran's cruelty.  
She also stated that shortly after their separation the 
appellant began cohabiting with another man, that they lived 
together for many years, and that the appellant had three 
children by that man.  A search of the public birth records 
disclosed a birth certificate for a child born of the 
appellant and a man whose initials are B.M. in August 1949.

The field examiner interviewed another individual who stated 
that the appellant had lived in the community with another 
man as his wife for approximately one year after the Japanese 
occupation, and that they then moved to Manila.  The 
individual also stated that the appellant and this man had 
two or three children, who were then living with the 
appellant's parents.

In an October 1965 deposition the appellant initially 
affirmed her prior assertion that she had not lived with any 
other man as husband and wife since her separation from the 
veteran.  When challenged, she stated that she wanted to tell 
the truth, which was that she and B.M. had lived together as 
husband and wife after she separated from the veteran until 
1950 or 1951.  She stated that their relationship was that of 
a married couple, although they were not legally married, and 
that they were known as husband and wife.  She also stated 
that she and B.M. had two children, one of whom died shortly 
after birth and the second, whose birth certificate the 
examiner had found.

Based on the results of the field investigation, the 
appellant's claim for an apportionment of the veteran's 
compensation benefits was denied.  The apportionment was 
denied on the basis that she had lived with another man and 
held herself out to be the wife of that man after her 
separation from the veteran, and was not entitled to an 
apportionment.  The appellant filed a notice of disagreement 
with that determination, but failed to perfect the appeal 
following the issuance of a statement of the case.

Beginning in March 1973 the appellant again claimed 
entitlement to an apportionment of the veteran's compensation 
benefits on numerous occasions, which claims were repeatedly 
denied.  She also presented a number of allegations and 
charges of wrong-doing on the part of the veteran and the 
woman he later married, none of which are relevant to the 
veracity of the statements made during the July 1965 field 
examination.  She stated on several occasions that she began 
living with B.M. only because she had been told that the 
veteran was dead, and she had no other means of support.

In an October 1973 affidavit a woman with the initials of 
R.P.M. stated that the veteran was her uncle, that her uncle 
and the appellant married prior to the war, that her uncle 
never returned to their town when the war was over, and that 
the previous affidavit to the effect that the appellant had 
lived with another man was false.  R.A. provided a similar 
affidavit.  They both stated that the previous affidavits 
were coerced by the veteran.

In April 1974 the appellant submitted a death certificate 
showing that B.M., the man with whom she had lived following 
her separation from the veteran, died in May 1958.

In a December 1982 statement the appellant reported that she 
had not read the affidavit that was completed by the field 
examiner in July 1965, and that she signed it only because he 
instructed her to do so.

The death certificate shows that the veteran died in August 
1993.  The appellant claimed entitlement to Dependency and 
Indemnity Compensation (DIC) benefits in May 1994.  She 
stated that she and the veteran had married in February 1937, 
and that the marriage ended by his death in August 1993.  In 
a February 1995 administrative decision the RO determined 
that the appellant was the veteran's surviving spouse for the 
purpose of DIC entitlement, against the claims of two other 
individuals.  The payment of DIC benefits was delayed, 
pending resolution of the appeals filed by the two other 
purported spouses.

In August 1996 the appellant was notified of the proposed 
determination that she had forfeited eligibility for VA 
benefits for having submitted false and fraudulent statements 
in the prosecution of her claim for an apportionment of the 
veteran's VA compensation benefits.

In August and November 1996 statements the appellant reported 
that she and her common-law husband, B.M., had lived together 
from 1949 to 1955, and that she had informed VA of her 
relationship with him, including the birth of their two 
children.  She stated that she was not aware that the veteran 
was alive until 1957, when she met him while visiting the 
home of his niece.  She denied having attempted to hide her 
relationship with B.M. from VA.

In the February 1997 decision here on appeal, the CPS 
determined that the appellant had provided false evidence to 
the VA field examiner in July 1965 when she stated under oath 
that she had not lived with any man in a husband and wife 
relationship or borne children to any man since her 
separation from the veteran.

In her March 1997 notice of disagreement the appellant denied 
having entered into a ceremonial marriage with any man since 
her separation from the veteran, and stated that she formed a 
common-law relationship with B.M. because she had no other 
means of support.  In a June 1997 statement and her May 1998 
substantive appeal she denied having provided a deposition to 
the field examiner in July 1965, and stated that the only 
deposition she made was in October 1965, during which she 
admitted to her relationship with B.M.

II.  Analysis

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.

The determination of whether the veteran submitted false or 
fraudulent evidence to VA is a question of fact.  See 
Macarubbo v. Gober, 10 Vet. App. 388 (1997).  Once the 
evidence is assembled, the Secretary is responsible for 
determining whether the preponderance of the evidence is 
against the appeal.  If so, entitlement is denied; if the 
evidence is in support of the appeal or is in equal balance, 
the claim is allowed.  38 U.S.C.A. § 5107(b); see Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990). 

The Board has reviewed the evidence of record and finds that 
the appellant made false and fraudulent statements in 
connection with her claim for an apportionment of the 
veteran's VA compensation benefits in July 1965, and that she 
has, therefore, forfeited all rights, claims, and benefits 
under all laws administered by VA.  In her July 1965 
deposition the appellant denied having lived with any man in 
the relationship of a husband and wife since her separation 
from the veteran in 1943; she denied having had any children 
by any man other than the veteran; and she denied holding 
herself out to the community as the wife of any man other 
than the veteran, which statements she knew to be false.  The 
preponderance of the evidence shows that she lived in a 
husband and wife relationship with B.M. for a number of 
years, and that she had three children by him.  Her 
assertions to the contrary were made for the purpose of 
obtaining VA benefits to which she was not otherwise 
entitled.  

The appellant's contention that she made no deposition in 
July 1965 is without merit, in that the case file includes 
the deposition and the VA field examiner verified its 
authenticity.  Her assertion that she disclosed her 
relationship with B.M. to VA is valid, in that she provided 
that information in October 1965, but does not negate the 
fact that she deliberately made false statements in the July 
1965 deposition.  Her contention that she was forced to live 
with B.M. following abandonment by the veteran is not 
relevant to whether she made false statements regarding their 
relationship.  Her eligibility for VA benefits has been 
forfeited not because she lived with another man as husband 
and wife, but because she submitted a false and fraudulent 
statement concerning that relationship.  

For the reasons shown above, the Board has determined that 
the preponderance of the evidence shows that the appellant 
knowingly made false statements and submitted a false 
deposition in order to obtain VA benefits to which she was 
not entitled, and that she has, therefore, forfeited all 
rights, claims, and benefits under all laws administered by 
VA.  38 U.S.C.A. § 6103(a).


ORDER

The appellant's appeal of the February 1997 determination 
that she had forfeited all rights, claims, and benefits under 
all laws administered by VA due to fraud is denied.




		
	Mark D. Hindin 
	Member, Board of Veterans' Appeals