Citation Nr: 1126497	
Decision Date: 07/14/11    Archive Date: 07/21/11

DOCKET NO.  10-11 182	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines


THE ISSUE

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

ATTORNEY FOR THE BOARD

Robert E. O'Brien, Counsel


INTRODUCTION

The record reflects that the appellant had military service with the special Philippine Scouts during World War II.  He died in May 1988, and the appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision by the VARO in Manila, the Republic of the Philippines.  


FINDINGS OF FACT

1.  The appellant's spouse, the Veteran, died in May 1988, long before the passing of the law providing for a one-time payment for the Filipino Veterans Equity Compensation Fund.

2.  There is no showing that the Veteran was entitled to the benefit prior to his death.


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. § 5101(a); American Recovery and Reinvestment Act of 2009, Section 1002, Public Law 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under 38 U.S.C.A. § 5103, VA must inform the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of what information and evidence VA will seek to provide and what information and evidence the claimant is expected to provide.

In this case, the appellant was not provided with 38 U.S.C.A. § 5103(a) compliant notice.  However, as will be discussed in detail below, the appellant, as a matter of law, is not entitled to the benefit she seeks.  She is not a Veteran herself, and her husband died before he could possibly file a claim for the benefit at issue.  Consequently, as a matter of law, the instant claim may not be substantiated.  In such cases, an appellant is not entitled to notice under 38 U.S.C.A. § 5103(a).  See VAOPGCPREC 5-2004.

As to VA's duties to assist the appellant, given that under the undisputed facts of this case, there is no assistance that would aid in substantiating the claim, VA has no duty to assist her.  VAOPGCPREC 5-2004.

In sum, the facts relevant to this appeal have been properly developed, and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of the claim.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

The appellant seeks entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund.  See the American Recovery and Reinvestment Act of 2009, Public Law 111-5, Section 1002.  Section 1002(d) of that Act defines a person eligible for such a payment as 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 guerilla 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.

Section 1002(c)(2) of the Act provides that:

If an eligible person who has filed a claim for benefits under [Section 1002 of the Act] dies before payment is made..., the payment [under Section 1002] shall be made instead to the surviving spouse, if any, of the eligible person.

The appellant herself does not contend that she had qualifying service establishing entitlement to the benefits sought.  Rather, she contends that her husband did have such service.  The record shows, however, that although his service would have qualified, he died in May 1988, long before the passing of the law allowing this benefit in February 2009 with the establishment of the Filipino Veterans Equity Compensation Fund.  He therefore could not have had an application pending for payment from that fund at the time of his death.  The application in this case was filed by the appellant in March 2009.

Given that it is undisputed that the appellant herself does not have the requisite service, and as her husband died prior to 2009, she does not meet the eligibility requirements for payment from the fund.  The Board is bound by the law in this matter.  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, 5 Vet. App. 426, 430 (1994).






ORDER

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


	                        ____________________________________________
	V. L. JORDAN
	Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs