Citation Nr: 1122991	
Decision Date: 06/15/11    Archive Date: 06/28/11

DOCKET NO.  10-36 662 	)	DATE
	)
	)

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


THE ISSUE

Eligibility for the one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.


ATTORNEY FOR THE BOARD

T.S. Willie, Associate Counsel


INTRODUCTION

This appeal comes before the Board of Veterans' Appeals (Board) from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  


FINDINGS OF FACT

1.  The appellant claims as the surviving spouse of P.A. who died in March 2009.  At the time of death, P.A. had a pending FVEC claim. 

2.  The National Personnel Records Center (NPRC) has certified that P.A. had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas in the service of the Armed Forces of the United States.


CONCLUSION OF LAW

The appellant is not eligible for the one-time payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2010); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009); 38 C.F.R. § 3.203 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010)) redefined VA's duty to assist claimants in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).

In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law).  This is such a case.  As discussed below, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits.  The VCAA is therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004).

Legal Criteria and Analysis

Under the recently enacted American Recovery and Reinvestment Act, a new one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund."  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).  Payments for eligible persons will be either in the amount of $9,000 for non- United States citizens or $15,000 for United States citizens.

Section 1002 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II.  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.  Section 1002 (c)(2) provides that if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person.

Section 1002 (d) provides that an eligible person is any person who served (A) 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 of the President dated July 26, 1941, including among such military forces 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; or (B) in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable.  The surviving spouse of an eligible person is not identified as an eligible person in their own right.

In this case, the appellant's husband, P.A. filed a claim for the one-time payment from the Filipino Veterans Equity Compensation Fund in March 2009.  He died later that month.  The Board notes that the American Recovery and Reinvestment Act does not permit recovery from the FVEC fund by surviving spouses.  However, a surviving spouse can be paid benefits due and owing to a qualified person if the Veteran had filed a claim following the enactment of the Act on February 17, 2009, but had died prior to the granting of the benefit.  This is the case here.  As the appellant's husband had a claim pending at the time of his death, the appellant may continue his claim.  

In his March 2009 claim, the appellant's husband related that he served in the A Co. 2nd Bn 1st Pangasinan Regt from May 1943 to December 1945.  However, the RO submitted his pertinent information, including name, date of birth, place of birth, dates of service, and branch of service to the National Personnel Records Center (NPRC) for verification.  The NPRC certified that he had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  The appellant nor her husband before his death submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1).  

The record contains joint affidavits, a marriage certificate, certification from the Armed Forces of the Philippines of guerilla military status, a copy of P.A.'s application for benefits to the Philippine Veterans Affairs Office (PVAO), identification cards and various statements from the appellant asserting that her husband had service.  However, the above documents and statements may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including the one-time payment from the Filipino Veterans Equity Compensation Fund.  The evidence submitted by the appellant fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department.  

In sum, although the appellant asserts that her husband had recognized service, the NPRC has certified that the he had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  This verification is binding on VA such that VA has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet App. 530, 532 (1992).  Recognition of service by the Philippine Government is not sufficient for benefits administered by VA.  This department is bound to follow the certifications by the service departments with jurisdiction over United States military records.

Based upon the record in this case, the appellant's husband had no qualifying service.  He therefore does meet the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund.


ORDER

Eligibility for the one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs