N OTE : This disposition is nonprecedential.


# United States Court of Appeals
**for the Federal Circuit**

______________________

GRACIANO S. ESCOSIA,

Claimant

- Appellant,

v.

E ric K. Shinseki, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee.

______________________

2013

- 7019

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 11

- 2993, Judge Margaret C. Bartley.

______________________

Decided: April 9 , 2013

______________________

G RACIANO S. E SCOSIA

, of Zambales, Phillippines, pro

se.

E LIZABETH A NNE S PECK , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, for respondent

appellee. With her on the brief were S T UART F. D ELERY

, Principal Deputy Assistant Attorney General, J EANNE E.GRACIANO ESCOSIA v. SHINSEKI 2

D AVIDSON , Director, and M ARTIN F. H OCKEY

, J R

. , Assi stant Director. Of counsel on the brief were M ICHAEL J.

T IMINSKI , Deputy Assistant General Counsel, and B RIAN
D. G RIFFIN , Attorney, United States Department of Vete rans Affairs, of Washington, DC.

______________________

Before M OORE

, B RYSON

, and W ALLACH

, Circuit Judges.

P ER C URIAM

.
Graciano S. Escosia appeals from the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming the Board of Veterans’ Appeals’ (“Board”) decision denying entitlement to pa yment from the Filipino Veterans Equity Compensation (“ FVEC”) fund. Because the Veterans Court properly upheld the Board’s decision that Mr. Escosia w as barred from receiving such payment due to an earlier, una ppealed forfeiture decision, this court affirms.

B ACKGROUND

On July 26, 1941, President Franklin D. Roosevelt i ssued a Military Order ordering into the service of the United States armed forces “for the period of the existing emergency . . . all of the organized military forces of the Government of the Commonwealth of the Philippines.” Military Order, 6 Fed. Reg. 3825 (Aug. 1, 1941). Mr. Escosia served in the recognized guerilla forces of the Commonwealth Army of the Philippines from March 1945 until June 1945 and in the Philippine Army from June

1945 to March 1946. In October 1976, the VA denied Mr.

Es cosia’s claim for disability benefits on the ground of forfeiture due to fraud, finding that Mr. Escosia had “knowingly and intentionally furnished, or caused to be presented to the Veterans Administration, materially false and fraudulent evidence in support of a claim for additional allowance for dependents on behalf of [another veteran]” (“October 1976 forfeiture decision”). App’x at 14.GRACIANO ESCOSIA v. SHINSEKI 3

In 2009, Congress established the FVEC fund as part of the American Recovery and Reinvestment Act of 2009 (“Recove ry Act”), and instructed the VA to make one

- time payments to eligible persons who submitted claims within

the one

- year period following enactment. Pub. L. No. 111

- 5, § 1002, 123 Stat. 115, 201 (2009). In February 2009,

Mr. Escosia filed a claim for paymen t from the FVEC

fund. A VA regional office denied his claim on the ground

that the October 1976 forfeiture decision barred Mr. Escosia from receiving payment under any laws admini stered by the Secretary of Veterans Affairs (“the Secr etary”). The Board af f irmed the denial. Following appeal by Mr. Escosia, the Veterans Court likewise affirmed the denial of Mr. Escosia’s claim on the ground of forfeiture by

fraud. Escosia v. Shinseki , 11

- 2993, 2012 WL 4377702 (Vet. App. Sept. 26, 2012) (“ Escosia ”) (citing 3 8 U.S.C. § 6103(a)). Mr. Escosia filed this timely appeal.

D ISCUSSION

Our jurisdiction to review decisions of the Veterans Court is limited by statute. Pursuant to 38 U.S.C. § 7292(a), this court has jurisdiction to review “the validity of a decision of the [Veterans] Court on a rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans] Court in making the decision.” Except to the extent that a constitutional issue is presented, this court may not review “a challenge to a factual determination,” or “a challenge to a law or regul ation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2 ). This court reviews the Veterans Court’s

l egal determinations de novo

. Cushman v. Shinseki , 576 F.3d 1290, 1296 (Fed. Cir. 2009).

On appeal, Mr. Escosia argues that the Veterans Court erred in affirming the Board’s denial of his FVEC claim. Mr. Escosia contends he is eligible for payment

under th e FVEC fund and, for various reasons, is notGRACIANO ESCOSIA v. SHINSEKI 4

barred by the forfeiture provision in 38 U.S.C. § 6103. As discussed above, the Recovery Act provides for a one

- time, lump

- sum payment to an eligible person who submitted

his claim within the one

- year period fo llowing the date of enactment. Recovery Act § 1002. An “eligible person” is one who served before July 1, 1946 in the organized military forces of the Government of the Commonwealth of the Philippines, including the recognized guerilla forces, and was discharged or released from service under

other than dishonorable conditions. Id. § 1002(d). Al though Mr. Escosia may otherwise be eligible for payment under the FVEC fund, the Veterans Court did not err in holding him ineligible for such payment due to forf eiture by fraud.

Section 6103(a) provides, in part:

whoever knowingly makes or causes to be made or conspires, combines, aids, or assists in, agrees to, arranges for, or in any way pr o cures the making or presentation of a false or fraudulent affidavit, declaration, certificate, statement, voucher, or p aper, concerning any claim for benefits under any

of the laws a d ministered by the Secretary (except laws pertaining to insurance benefits) shall forfeit all rights, claims, and benefits under all laws a dmi nistered by the Secretary (except laws pertai ning to insurance benefits).

38 U.S.C. § 6103(a). Application of section 6103 to the unappealed October 1976 forfeiture decisio n— which

found Mr. Escosia had “ knowingly and intentionally furnished, or caused to be presented to the [VA], materia lly false and fraudulent evidence”

— means Mr. Escosia has

forfeited his claim to benefits from the VA. App’x at 14. On appeal, Mr. Escosia contends there was error in the

October 1976 forfeiture decision. See Appellant’s Br . at 1 (arguing he should not be subject to forfeiture under

section 6103 because he “acted as [an] interpreter not as aGRACIANO ESCOSIA v. SHINSEKI 5

fixer.”). However, a final VA decision may be collaterally attacked only by filing a motion for revision based on clear and unmistakable error (“CUE”) with the appropr iate VA regional office or by requesting to reopen the original claim based on new and material evidence

. Cook v. Principi , 318 F.3d 1334, 1339 (Fed. Cir. 2002). Mr. Escosia has not pursued either course of action. See

Esc osia at *2 (affirming that Mr. Escosia failed to plead CUE to the Board with sufficient specificity to constitute a cognizable motion for revision pursuant to 38 C.F.R. § 20.1404(b)). This court, like the Veterans Court, lacks jurisdiction to entertain a CUE challenge in the first

instance. See Andre v. Principi , 301 F.3d 1354, 13 61

- 62 (Fed. Cir. 2002); Conway v. Principi , 353 F.3d 1369, 1372 (Fed. Cir. 2004) (this court reviews only questions of law and cannot review any application of law to fact). Mr.

Escosia’s contentions of factual error in the October 1976 forfeiture decision are thus not reviewable by this court.

Mr. Escosia also contends the Veterans Court impro perly failed to consider 38 U.S.C. § 107, which, according to Mr. Escosia, grants “specific rights and benefits” to Filip ino veterans. App ellant’s Br. at 1. According to Mr. E scosia, section 107 provides that “Filipino Veterans are considered [to be] CIVILIAN Employees of the Armed Forces of the United States,” and, as such, “may[] be

covered under [ Workmen’s ] Compensation Act . . . .” Id. Pursuant to 38 U.S.C. § 107, those who served before July 1, 1946 in the organized military forces or the organized guerilla forces of the Government of the Commonwealth of the Philippines “shall not be deemed to have been active military, naval, or air service” for purposes of

entitlement to most veter an benefits. However, this does not indicate that such persons are defined as civil ian employees of the military. Section 107 was enacted after World War II, when Congress provided that Filipino veterans who had served in the organized military forces

of the Government of the Commonwealth of the Phili p-GRACIANO ESCOSIA v. SHINSEKI 6

pines under United States authority prior to July 1, 1946, were entitled to certain specified service

- connected dis ability compensation and death benefits, but were not entitled to other benefits typically afforded to veterans of the United States military. First Supplemental Surplus Approp riation Rescission Act of 1946, Pub. L. 79

- 301, 60 Stat. 6 (1946) (codified as amended at 38 U.S.C. § 107(a)). Section 107 thus places Filipino veterans in a category of their own; the fact that they are not considered to have

been in active military serv ice for purposes of VA benefits does not imply that they are instead considered civilian employees of the military.

Mr. Escosia further presents several arguments why section 6103 does not bar him from receiving payment from the FVEC fund. First, Mr. Escosia appears to argue that the earlier finding of forfeiture no longer bars him from receipt of VA benefits, because he has since been naturalized as a United States citizen. App ellant’s Br. at 2. However, nothing in section 6103 indicates that a chang e in citizenship constitutes a basis for avoiding the forfeiture bar. 38 U.S.C. § 6103. Second, Mr. Escosia

appears to contend that payment pursuant to the Reco very Act’s FVEC fund is not subject to the section 6103 bar. Appellant’s Br. at 2. This argume nt similarly lacks merit, because the FVEC fund is a law “administered by the Secretary” pursuant to section 6103, and payment from

the fund is thus properly barred by forfeiture for fraud.

See Recovery Act §§ 1002(b)(2), (c)(1), (j)(2) (instructing

the Se cretary of Veterans Affairs to administer the prov isions of the FVEC fund consistently with other applicable provisions of T itle 38 United States Code). Last, Mr. Escosia argues that he is not subject to section 6103

because he is not a “veteran of the Un ited St[a]tes Armed Forces.” App ellant’s Br. at 2. As discussed above, Mr. Escosia’s service in the Philippine military forces prior to July 1, 1946 is not deemed to be “active military, naval, or

air service ,” 38 U.S.C. § 107 ; nevertheless, section 6103GRACIANO ESCOSIA v. SHINSEKI 7

applies to any person who engages in fraud concerning a claim for benefits under laws administered by the Secr etary, including Mr. Escosia. 38 U.S.C. § 6103(a).

We have considered Mr. Escosia’s remaining arg uments and find them unpersuasive. Accordingl y, the Veterans Court’s decision affirming the denial of Mr. Escosia’s claim for payment is

AFFIRMED

No c osts.