Citation Nr: 1124657	
Decision Date: 06/29/11    Archive Date: 07/06/11

DOCKET NO.  11-11 372	)	DATE
	)
	)


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



THE ISSUE

Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.


REPRESENTATION

Appellant represented by: Glorioso S. Ganuelas


ATTORNEY FOR THE BOARD

Russell P. Veldenz, Associate Counsel
INTRODUCTION

The Veteran had Recognized Guerilla service from December 1944 to January 1946 and Regular Philippine Army service from January 1946 to June 1946.  The Veteran died in September 1959.  The Appellant is the son of the deceased Veteran.

In April 2010, the Appellant requested that he be substituted as the Appellant in the claim for accrued benefits, which is referred to an Agency of Original Jurisdiction for appropriate action.  


FINDINGS OF FACT

1.  The Veteran had Recognized Guerilla service from December 1944 to January 1946 and Regular Philippine Army service from January 1946 to June 1946.

2.  The Veteran died in September 1959.

3.  F.L. was the Veteran's spouse and she died in March 2009.  

4.  The Appellant is the son of the Veteran and F.L. and was born in November 1949.


CONCLUSION OF LAW

The criteria for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund have not been met.  38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2010).

Veterans Claims Assistance Act of 2000

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  

On the question whether the Appellant is legally entitled to the one time payment from the Filipino Veterans Equity Compensation Fund, the facts are not in dispute.  As the law and not the facts are dispositive, the provisions of the VCAA do not apply.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Facts

The Veteran had Recognized Guerilla service from December 1944 to January 1946 and Regular Philippine Army service from January 1946 to June 1946.  

The Veteran was married to F.L., and they had one child, the appellant, G.L.  He was born in November 1949.  

The Veteran died in September 1959.

The Veteran's spouse, F.L., died in March 2009.  

The Appellant filed a claim for payment under the Filipino Veterans Equity Compensation Fund on his own behalf in November 2009.



Analysis

Service in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, may constitute recognized service in the Armed Forces of the United States for the purpose of establishing eligibility for benefits, administered by the United States Department of Veterans Affairs.  38 C.F.R. §§ 3.40, 3.41.

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.  As provided for in § 1002 of P.L. 111-5; H.R. 1, the American Recovery and Reinvestment Act (enacted February 17, 2009), the Secretary must establish an application process for claims to be submitted for this new benefit that must be filed within one- year of the date of enactment of this new law.  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 the 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.






In particular, § 1002 (d) provides that an eligible person is any person who--(1) 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.  

A surviving spouse of an eligible person is not identified as an eligible person in her own right.  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.

The Appellant does not argue that he is personally eligible for payment from the fund.  Rather, he contends that his father did have such service.

The American Recovery and Reinvestment Act, however, does not permit recovery from the FVEC fund by the Appellant.  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.  




As the Veteran died in September 1959, a half century prior to enactment of Public Law 111-5, a claim was not filed under the The American Recovery and Reinvestment Act.  Therefore, the Appellant cannot collect benefits as the father's sole surviving beneficiary or as the guardian or beneficiary of a payee surviving spouse, that is, F. L., his mother, as a matter of law.

The only argument raised by the Appellant is that the American Recovery and Reinvestment Act, as it pertains to the FVEC, is unconstitutional.  No further argument is given.  The Board need not address the Appellant's vague arguments that amount to "mere assertions of constitutional impropriety."  Brewer v. West, 11 Vet. App. 228, 236-37 (1998).  See Gov't and Civic Employees Organizing Comm., CIO v. Windsor, 353 U.S. 364, 366 (1957 ) ("federal courts will not pass upon constitutional contentions presented in an abstract rather than a concrete form.")

As the law and not the evidence of record is dispositive in this case, the claim must be denied because of the lack of legal entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs