Pedro P. Del Rosario v. James B. Peake

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 06-1596

PEDRO P. DEL ROSARIO , APPELLANT ,

V.

JAMES B. PEAKE, M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided January 5, 2009)

Mark R. Lippman, of La Jolla, California, was on the brief for the appellant.

R. Randall Campbell, Assistant General Counsel; Carolyn F. Washington, Deputy Assistant

General Counsel; and Kristen D. King-Holland, all of Washington, D.C., were on the brief for the

appellee.

Before GREENE, Chief Judge, and MOORMAN, and LANCE, Judges.

LANCE, Judge: The appellant, veteran Pedro P. Del Rosario, appeals through counsel a May

15, 2006, decision of the Board of Veterans' Appeals (Board) determining that forfeiture of his

benefits pursuant to 38 U.S.C. § 6103(a) was proper. Record (R.) at 1-15. For the reasons that

follow, the Court will affirm the Board's May 15, 2006, decision.

I. FACTS

The appellant served in the U.S. Navy from October 1954 to March 1974. R. at 17-20. He

was granted service connection for disabilities including coronary artery disease, chronic cystitis and

prostatitis, diabetes mellitus, post-concussion syndrome, lichen simplex chronicus, hypothyroidism,

peptic ulcer disease, and hemorrhoids. R. at 144. His combined disability rating was 90%, effective

May 30, 2002. Id.

In September 1997, the regional office (RO) requested that a field examination be conducted

to "investigate if [the appellant was] involved in claims fixing." R. at 49. The request indicated that

the appellant's "application as veteran's representative was denied by the Central Office" and that

when confronted with that information, "he started presenting himself as the [s]ervice [o]fficer of

a Retiree Affairs Office [(RAO)] in Manila. . . . [V]erification shows that there is no approved RAO,

in Manila; although there[ i]s a rumor that an application for recognition is pending." Id. VA

recorded 11 instances where the appellant followed up on claims for individuals. Id. A January

1998 field examination report reflects that "[w]itnesses interviewed were unanimous in their

testimonies that they were assisted by the [appellant] for free." R. at 40. The appellant testified that

he would assist claimants with "[c]o[u]nselling, preparation of claims including the collection of

evidence, military records and other pertinent records," but that he did not have any written

agreement with the claimants and did not charge them anything for his services. R. at 42-43. In an

April 2002 sworn statement before a special agent of the VA Office of the Inspector General, the

appellant stated: "In my spare time I help veterans in applying for VA benefits only when they come

to me for assistance." R. at 57. He further stated:

I have taken 10% of the VA lump sum payment received by the claimant only if they

are willing to pay me. . . . I have taken the [illegible] 10% from 20 to 30 claimants.

They were willing to give it to me. Over a 5 year period I have received

approximately $5,000 for these services.

R. at 58.

An August 2002 field examination report reflects that veteran F.A. was interviewed to verify

if he had signed an August 8, 2000, affidavit. R. at 64–72. The investigation centered on false

affidavits signed by F.A., and allegedly prepared by the appellant, that were submitted on behalf of

D.S. (surviving spouse of veteran Dn. S.) and Z.M.A. (surviving spouse of J.R.A.) in connection

with their claims for dependency and indemnity compensation (DIC). R. at 60-84. In an August 8,

2000, affidavit (D.S. affidavit), F.A. stated that he had known veteran Dn. S. during his incarceration

as a prisoner of war (POW) at Camp O' Donnel, Capas, Tarlac, and that he "had seen and observed

that [Dn. S.] was afflicted with malaria, dysentery, beriberi, peptic ulcer and other ailments . . . ."

R. at 51. Similarly, in an August 15, 2001, affidavit (Z.M.A. affidavit) F.A. stated that he had

personally known veteran J.R.A. during his incarceration at Camp O'Donnel and that he "had seen

and observed that [J.R.A.] was afflicted with [m]alaria, [d]ysentery, [b]eriberi, [p]eptic [u]lcer and

[o]ther ailments . . . ." R. at 53. Except for differences in the deceased veterans' names and the dates

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in which F.A. alleged he was detained in the POW camp with them, the affidavits are

indistinguishable regarding the information provided about the deceased veterans. Compare R. at

51, with R. at 53.

The August 2002 field examination report further indicates that F.A. testified that he did "not

know of any person by the name [Dn. S]." R. at 64 (summarizing deposition, R. at 66-72). The

investigator related that F.A. also stated that "[Dn. S. was] not among those incarcerated with him

at Camp O'Donnel." Id. The report also states:

When shown the [a]ffidavit submitted by [D.S], [F.A.] stated that he could not read

the affidavit because of very blurred vision. He explained that he is being assisted

in the prosecution of his claim by Mr. Pedro Del Rosario. . . . He agreed to pay a

minimum of 10% of any additional benefit he will be able to get from the VA. He

recalled going to Mr. Del Rosario's office . . . where he signed documents pertaining

only to his claim. He clarified that the contents of the documents were read and

explained by Mr. Del Rosario before he affixed his signature. He insisted that he

never signed any [a]ffidavit pertaining to the claim of another person.

Id.

F.A. was the subject of another field examination conducted in November 2002 in relation

to the Z.M.A. affidavit. R. at 75-78. F.A testified that he did not remember the name of veteran

J.R.A. nor that he was incarcerated at Camp O'Donnel. R. at 75. When he was shown the Z.M.A.

affidavit, F.A. acknowledged his signature but stated that he did not know of its entire contents. R.

at 76. When asked "[w]ho in the first place enticed [him] to sign the affidavit testifying that [veteran

J.R.A.] was [his] former comrade at [Camp O'Donnel]," he replied: "Pedro Del Rosario, a veteran

from Gen. Santos City." Id. F.A. stated that he did not receive remuneration for signing the

affidavit and that the affidavit was not read or explained to him before it was signed. He further

stated that he had payed the appellant 7,000 pesos for assisting him with his claim before VA and

that he was being charged less "since [they] were cooperating with each other with regard[] to [the]

claims of other veteran[s]. I referred to him other veteran[s] for his assistance." Id. He indicated

that the appellant usually charged "20% of the lump sum" to other claimants. Id. F.A. further

acknowledged signing other affidavits on behalf of other claimants upon request by the appellant,

but that he did not usually know of their contents. Id.

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Also in November 2002, D.S. was interviewed about the D.S. affidavit. R. at 61-63. During

the interview, she stated:

I would like to withdraw my [DIC] claim . . . in as much that I felt the affidavit

submitted signed by certain [F.A.] was baseless. I have no proof or document to

submit to prove that [F.A.] and my husband had ever met in the prison camp. It was

my intention to have [the] benefit from your office[,] but I did not know, exactly the

evidence[] submitted and I suppose[] being prepared by Del Rosario. . . . I am sorry

I gave unfounded information which Mr. Pedro [D]el Rosario prepared.

R. at 61. When asked whether the appellant charged her for his assistance preparing the affidavit,

she replied that "[h]e did not ask for money but he warned that should our claim [be] approved he

would get money at our volition." R. at 62.

Subsequently, in April 2003, Z.M.A. was interviewed regarding her involvement with the

Z.M.A. affidavit. R. at 82-84. The field examination report states that Z.M.A. "averred that [F.A.]

was introduced to her by Mr. Pedro [D]el Rosario, who assisted her in her claim with the VA. She

paid Mr. Del Rosario 1,000.00 pesos for the preparation of the affidavit, and he demanded 20% of

the lump sum amount [s]he would be receiving from the VA." R. at 80. During the interview,

Z.M.A. reported that the appellant told her that she was entitled to VA benefits as the surviving

spouse of a deceased veteran and that "he was aware that [F.A.] and the veteran met each other at

Camp O'Donnel, and he ([F.A.]) could help me in my claim with [VA] by executing an affidavit

pertaining to his observation o[f] the veteran's physical condition at the time of his detention at the

camp." R. at 82. She also indicated that VA awarded her a lump sum of $12,905, but that she was

unable to pay the appellant because she "could not contact him at the PVAO [(Philippine Veterans

Affairs Office)]." R. at 83. A December 2005 certification from the chief administrator of the

PVAO states that the appellant "had never been connected in any capacity with the [PVAO]." R. at

287.

In a June 2003 letter from the RO, the appellant was notified of the RO's proposal to initiate

forfeiture action under 38 U.S.C. § 6103. R. at 90-100. The letter notified him of the bases of the

charge and of the pertinent statutory provisions governing forfeiture for fraud. R. at 90-92. Further,

the appellant was informed:

You have a right to a hearing within the 60-day period [from the date of the letter],

with representation by counsel, if desired. Such hearings are for the purpose of

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receiving contentions, oral arguments, and testimony and may be held before the

Director, Compensation and Pension Service [(C&P)], Washington, D.C., or before

qualified personnel of [VARO], Manila. Expenses incurred by you, your counsel, or

your witnesses incident to attendance at a hearing will not be paid by the United

States Government. If you do not desire to incur the expense of a hearing but prefer

to mail us your written statement together with any other evidence, the written

evidence will be given equal weight to that presented in a hearing. If you desire a

hearing you may make arrangements by writing to this office and you will be advised

of a date and time to report.

R. at 92.

On August 13, 2003, the appellant provided a written response to the charge. He asserted

that he did not knowingly participate in the preparation and submission of fraudulent affidavits. R.

at 105-108. He stated that he repeatedly pointed out to F.A. that if the facts in the affidavits were

false, he did not have to sign them, as there would be consequences if he were to do so. R. at 105-

06. To support his argument that he did not knowingly prepare the fraudulent affidavits, he

submitted, inter alia, a July 10, 2003, affidavit signed by F.A. R. at 109. In that affidavit, F.A.

averred that there had been no fraud in the execution of the D.S. affidavit as it was difficult for him

to remember all of the people he had met during his incarceration at the POW camp. R. at 109, 114.

He also stated that the appellant reminded him of the consequences of submitting untruthful

statements to VA. R. at 109.

In August 2004, the RO issued a final administrative decision concluding that the evidence

of record was "sufficient to warrant submission of the veteran for consideration of forfeiture for

fraud." R. at 113. Thereafter, the Director of C&P determined that the appellant had forfeited his

VA benefits because he had "knowingly and intentionally furnished false and fraudulent evidence

in the prosecution of the surviving spouses' claims for VA benefits." 143-161. The appellant

appealed to the Board (R. at 169-77, 202, 290), and on May 15, 2006, the Board issued the decision

here on appeal. R. at 1-15. The Board determined that forfeiture was proper. R. at 1-13. The Board

found that the evidence established that the appellant "knowingly assisted in the procurement,

preparation, and/or presentation of fraudulent evidence (affidavits signed in August 2000 and August

2001) in connection with the pursuit of [DIC] on behalf of two surviving spouses who were not

entitled to such benefits." R. at 12.

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II. ANALYSIS

Section 6103(a) of title 38, U.S. Code, provides:

Whoever 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

(except laws pertaining to insurance benefits) shall forfeit all rights, claims, and

benefits under all laws administered by the Secretary (except laws pertaining to

insurance benefits).

38 U.S.C. § 6103(a). "Fraud" is defined by VA regulation as "[a]n act committed when a person

knowingly makes or causes to be made[, among other things,] . . . a false or fraudulent affidavit . . .

concerning any claim for benefits under any of the laws administered by [VA]." 38 C.F.R.

§ 3.901(a) (2008). In Trilles v. West, 13 Vet.App. 314, 322 (2000) (en banc), the Court noted that

"section 6103(d)(1) authorizes forfeiture actions for acts occurring in the Philippine Islands after July

4, 1946, the date of Philippine independence from its previous status as a territory of the United

States." See also 38 U.S.C. § 6103(d)(1).

The Court in Trilles also noted that "[t]he language of section 6103 . . . is completely silent

on the forfeiture process." 13 Vet.App. at 321. The Secretary, however, has been delegated the

authority "to prescribe all rules and regulations which are necessary or appropriate to carry out the

laws administered by [VA] and are consistent with those laws." 38 U.S.C. § 501(a). For forfeiture

cases, "the Secretary delegated authority to the director of C&P. . . 'to determine whether a claimant

or payee has forfeited the right to gratuitous benefits or to remit a prior forfeiture pursuant to the

provisions of 38 U.S.C. § 6103 or 6104.'" Flores v. Nicholson, 19 Vet.App. 516, 520 (2005)

(quoting 38 C.F.R. § 3.100 (2005)); see 38 C.F.R. § 3.100 (2008). Further,

[w]ith regard to adjudication of forfeiture cases arising in the Philippines, where

prosecution under the U.S. criminal code and attendant procedural rights for the

accused could not be relied upon, the Secretary implemented the adjudication

procedures set forth in 38 C.F.R. § 3.905 . . . and supplemented by Chapter 36 of

VA's Adjudication Procedure Manual M21-1, part IV [hereinafter M21-1]. See

Trilles, 13 Vet.App. at 318. Under these provisions, the Manila RO is authorized to

conduct a preliminary adjudication of the alleged forfeiture. See 38 C.F.R.

§ 3.905(a). If the RO concludes that the evidence establishes forfeiture, the RO

forwards the matter to the director of C&P Service, VA Central Office for a final

determination. See id.

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Flores, 19 Vet.App. at 520.

A forfeiture action "must be declared 'beyond a reasonable doubt.'" Trilles, 13 Vet.App. at

326. The Board's determinations regarding forfeiture are reviewed under the "clearly erroneous"

standard of review. Flores, 19 Vet.App. at 523.

A. Due Process

1. Sufficiency of June 2003 Notice

The appellant first argues that the RO's June 2003 notice letter violated his due process rights

because it provided him with "terse" notice and failed to inform him "of the importance of presenting

live testimony at a hearing."1 Appellant's Brief (Br.) at 7-12. Therefore, he contends that he did not

knowingly and intelligently waive his right to a hearing. Id. at 7. The Secretary maintains that the

notice provided adhered closely to the specific regulatory notice provisions under

38 C.F.R. § 3.905(b) for forfeiture of VA benefits under § 3.901 or § 3.902. Secretary's Br. at 10-11.

VA regulations explicitly set out in detail the notice requirements incident to a forfeiture

proceeding. See 38 C.F.R. § 3.905(b) (2008); see also M21-1, ch. 36, pt. IV. Specifically, a

forfeiture of benefits based on fraud "will not be declared until the person has been notified by the

Regional Counsel or, in VA Regional Office, Manila, Philippines, the Veterans Service Center

Manger, of the right to present a defense." 38 C.F.R. § 3.905(b). The notice must contain:

(1) The specific charges against the person;

(2) A detailed statement of the evidence supporting the charges, subject to

regulatory limitations on disclosure of information;

(3) Citations and discussion of the applicable statute;

(4) The right to submit a statement or evidence within 60 days, either to rebut

the charges or to explain the person's position;

(5) The right to a hearing within 60 days, with representation by counsel of

the person's own choosing, that fees for the representation are limited in accordance

with 38 U.S.C. [§] 5904(c) and that no expenses incurred by a claimant, counsel or

witness will be paid by VA.

1

The appellant has not presented any argument with regard to the Board's ultimate determination that, beyond

a reasonable doubt, he forfeited his right to VA benefits. Therefore, the Court will not address that issue in its decision.

Cromer v. Nicholson, 19 Vet.App. 215, 217 (2005) ("[I]ssues not raised on appeal are considered abandoned.").

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38 C.F.R. § 3.905(b). It is clear from the plain language of the regulation that VA unequivocally

provides the opportunity for a hearing prior to the forfeiture of benefits. 38 C.F.R. § 3.905(b); see

38 C.F.R. § 3.103(b)(2) (2008) ("Advance notice and opportunity for hearing").

At the outset, the Court disagrees with the appellant's characterization of the notice provided

by VA as "terse." Contrary to his description, the notice was detailed and informed him that he had

60 days within which to request a hearing, with representation. R. at 92. Additionally, the letter

specifically informed him that the purpose of the hearing was for "receiving contentions, oral

arguments, and testimony." Id. The letter also stated that he could mail a written statement together

with any other evidence and that "the written evidence will be given equal weight to that presented

in a hearing." Id. Further, it informed him that "[i]f [he] desire[d] a hearing [he could] make

arrangements by writing [the RO] and [that he would] be advised of a date and time to report." Id.

Finally, the letter notified the appellant that, "if no word [was] received from [him] within 60 days

from the date of [the] letter, consideration [would] be made based on the evidence of record." Id.

It is well established that the essential requirements of due process are notice and the

opportunity to respond. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985); see

also Edwards v. Peake, 22 Vet.App. 29, 32 (2008) ("An essential principle of due process is that

deprivation of a protected interest must 'be preceded by notice and an opportunity for hearing

appropriate to the nature of the case.'" (quoting Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 313 (1950))). The process used by the RO satisfied these requirements. Therefore, the

Court holds that the June 2003 notice letter adequately notified the appellant of both his right to

submit evidence and his right to a hearing, and the consequences of failing to do so. See 38 C.F.R.

§ 3.905(b), supra.

The appellant also argues that due process requires that "a VA claimant must be adequately

informed of the scope and importance of his due process right in order to intelligently waive it."

Reply Br. at 2-3. He essentially contends that, in order to adequately inform him of his right to a

hearing, VA must inform him "of the importance of presenting his live testimony at a hearing."

Appellant's Br. at 10. Assuming that live testimony is as important as the appellant suggests, his

argument fails to acknowledge that the June 2003 notice letter, in fact, informed him of the purposes

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for a hearing before the agency, i.e., for "receiving contentions, oral arguments, and testimony." R.

at 92.

Furthermore, the legal authorities that the appellant relies upon do not support his argument

that he could not knowingly waive his right to appear at a hearing because the June 2003 notice letter

failed to explain the advantages of presenting live testimony rather than submitting a written

statement. Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir.

1978), a Social Security case, holds only that the Appellate Counsel needs substantial evidence to

reverse a credibility determination of an Administrative Law Judge (ALJ) who witnessed live

testimony. Cowart v. Schwieker, 662 F.2d 731, 735 (11th Cir. 1981), another Social Security case,

deals with an ALJ's statutory duty to investigate relevant facts. It does not conclude that live

testimony is necessarily better than written testimony. Howe v. Goldcorp Investments, LTD., 946

F.2d 944, 952 (1st Cir. 1991), is a forum non conveniens case that held it was proper for a district

court to dismiss a suit where none of the relevant witnesses would be subject to subpoena. Hence,

Howe concluded that an opportunity for live testimony is necessary, but did not usurp the parties'

choice as to whether to use it. There is simply no support for the proposition that live testimony will

always be in an appellant's interest. Certainly, some people present themselves better in writing than

they do orally. The Secretary need not advise the appellant that live testimony will necessarily be

more favorable to him.

The appellant also relies on Janssen v. Principi, 15 Vet.App. 370, 374 (2001), to support his

contention that, "without the benefit of legal counsel, it cannot be said that [he] understood the

consequences of waiving his right to present live testimony." Appellant's Br. at 11. To the extent

that the appellant is attempting to assert that he was unable to waive his right to a hearing in this

instance absent consulting with counsel first, we are not persuaded. While the Court in Janssen did

focus on representation by counsel in reaching the conclusion that Mr. Janssen could waive the

Court's consideration of the Veterans Claims Assistance Act (VCAA) on appeal, it did not require

it. 15 Vet.App. at 374. Here, although he was not an authorized VA representative, the record

reveals, and indeed the appellant has conceded, that he had been assisting veterans with their claims

for benefits since at least 1998. R. at 43. Therefore, the record does not support the appellant's

argument that he could not waive his rights without the assistance of counsel.

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Finally, any assertion by the appellant that he never affirmatively waived his right to a

hearing is not convincing. Due process rights may be waived, see Boddie v. Connecticut, 401 U.S.

371, 378-79 (1971), so long as such a waiver is made knowingly and voluntarily. See United States

v. Olano, 507 U.S. 725, 733 (1993) (holding waiver is the "'intentional relinquishment or

abandonment of a known right'" (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))). Here, as

discussed above, the appellant was adequately informed of his right to submit evidence and request

a hearing within 60 days of the June 18, 2003, letter. Within that timeframe, he chose to provide a

written response to the proposed charge in lieu of appearing at a hearing. See R. at 105-108;

38 C.F.R. § 3.905(b). In his response, he specifically stated: "I disagree with the charge and wish

to rebut it with the following discussion and argument." R. at 105. This specific statement was a

clear manifestation of the appellant's intent to address the proposed charge with his written response

and discussion. He never referred to wanting to appear at a personal hearing and his failure, in light

of the June 2003 notice letter, to request a hearing in his written response or at any time constituted

the waiver of his right to a hearing. Cf. Anderson v. Brown, 9 Vet.App. 542, 547 (1996) (holding

that "[b]ased upon the language in the letter, the Board could reasonably construe the representative's

request as the appellant's waiver of his right to a hearing."). Moreover, we observe that the appellant

does not contend that he ever requested a personal hearing at any time before or after his August

2003 written submission to VA. Additionally, there is no evidence that he did. Indeed, even when

he appealed the forfeiture action to the Board, he checked off the box that stated "I do not want a

B[oard] hearing." R. at 290. Nor did he attempt to extend his time to request a hearing. See

38 C.F.R. § 3.109(b) (providing that "[t]ime limits within which claimants or beneficiaries are

required to act to perfect a claim or challenge an adverse VA decision may be extended for good

cause shown").

In short, the Court need look no further than the plain language of the June 2003 notice and

the specific procedures outlined in 38 C.F.R. § 3.905(b) to conclude that the appellant's procedural

due process rights were adequately protected. See Loudermill and Edwards, both supra; see also

Tilles, 13 Vet.App. at 324 (noting that "[w]hen Congress was considering amending [section 6103],

VA already had established procedures in place of which Congress was fully aware and to which

Congress had given tacit approval").

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2. The Board's Reliance on Hearsay Evidence

The appellant also asserts that "the Board violated basic due process principles by basing its

decision to forfeit [his] benefits upon fundamentally untrustworthy and unreliable statements;

namely, the hearsay statements of [D.S.] and those of [F.A.], who [were] clearly implicated in the

charged fraud." Appellant's Br. at 12. The appellant's argument is unpersuasive.

Preliminarily, we observe that the Federal Rules of Evidence generally "do not apply to

proceedings before the Regional Office . . . , the Board, or this Court." Bielby v. Brown, 7 Vet.App.

260, 267 (1994) (citing Flynn v. Brown, 6 Vet.App. 500, 503 (1994) (Rules of hearsay evidence do

not apply to proceedings before the Board.)); see also Gabrielson v. Brown, 7 Vet.App. 36, 40

(1994) (recognizing that the Board's statutory duty to state the reasons or bases for its findings and

conclusions serves a function similar to cross-examination in adversarial litigation). Although the

Court has indeed noted that a "forfeiture action is an adversarial process initiated by the Secretary

to protect the public fisc from false or fraudulent claims and it must be declared 'beyond a reasonable

doubt'", Trilles, 13 Vet.App. at 326, we are not persuaded that the adversarial rules of evidence

should nonetheless apply in this context.

Moreover, we are not persuaded by the appellant's argument that the hearsay statements relied

upon by the Board "show none of the indicia of trustworthiness or reliability rooted in any of the

hearsay exceptions." Appellant's Br. at 14. To the contrary, the logic of Rule 804(b)(3) of the

Federal Rules of Evidence governing statements against interest appears to weigh in favor of the

Board's reliance on such statements. That evidentiary rule provides, in pertinent part, that hearsay

will not be excluded when it is

[a] statement which was at the time of its making so far contrary to the declarant's

pecuniary or proprietary interest, or so far tended to subject the declarant to civil or

criminal liability, or to render invalid a claim by the declarant against another, that

a reasonable person in the declarant's position would not have made the statement

unless believing it to be true.

Fed. R. Evid. 804(b)(3).

Here, the statements made by both F.A. and D.S. were against their pecuniary interests

insofar as they could potentially render them subject to forfeiture proceedings by VA as well. See

38 U.S.C. § 6103(a). F.A., according to the record on appeal, is in receipt of VA benefits. See, e.g.,

11

R. at 75. Thus, any statements by him regarding his involvement in the procurement of the

affidavits could render him potentially subject to VA forfeiture proceedings.2 Similarly, while the

Court acknowledges that D.S. withdrew her DIC claim (R. at 61), a subsequent forfeiture

determination regarding her would permanently bar her from any VA benefits. Id. The Court holds

that the appellant's due process argument is unfounded and therefore concludes that the Board did

not err in relying on the statements of F.A. and D.S. in upholding the forfeiture of the appellant's

benefits.

We are aware that a prerequisite to the applicability of Rule 804(b)(3) is the declarant's

unavailability. See Fed. R. Evid. 804(a). However, that does not diminish that rule's underlying

rationale regarding the trustworthiness and reliability of such statements. We rely on the substance

of Rule 804(b)(3) merely to demonstrate that the appellant's allegation of inherent unreliability of

the statements relied upon by the Board as the premise of his due process argument is misplaced.

B. Duty to Assist

Alternatively, the appellant argues that VA's duty to assist required the RO, "sua sponte," to

order a hearing. Appellant's Br. at 16-17. However, the Secretary afforded the appellant the

opportunity for a hearing, and the appellant waived that right. See R. at 105-108. He cites no

statutory or regulatory authority to support this argument. See U.S. Vet.App. R. 28(a)(5) (requiring

that an appellant's brief contain, among other things, "an argument, beginning with a summary and

containing the appellant's contentions with respect to the issues and reasons for those contentions,

with citations to the authorities and parts of the record on appeal relied on" (emphasis added)); see

also Hilkert v. West, 12 Vet.App. 145, 151 (1999). While he does contend in his reply brief that

"§ 5103A(a)(1) must be read as a sweeping mandate, requiring the VA to provide assistance as the

claim requires," he does not indicate how that statutory provision required the Secretary to schedule

a hearing sua sponte in this case. Reply Br. at 4-5. The duty to assist under Section 5103A focuses

on the Secretary's obligation to provide a claimant with adequate assistance, which was provided in

2

The Court is unaware whether VA has initiated such proceedings and makes no holding on the propriety of

such action.

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this case. It does not require the Secretary to paternalistically make a veteran's decisions on the

veteran's behalf. Thus, the Court holds that the appellant's duty to assist argument is untenable.

III. CONCLUSION

Accordingly, the Board's May 15, 2006, decision is AFFIRMED.

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