Citation Nr: 1127669 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 10-47 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Appellant is the surviving spouse of a Veteran who had recognized active service from November 1944 until February 1946. The Veteran died in August 2002. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Manila, Republic of the Philippines, that denied the benefit sought on appeal. In January 2011 correspondence the Appellant raised the issue of whether new and material evidence has been received to reopen the claim for entitlement to service connection for the cause of the Veteran's death. She also appears to request pension. These claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran died in August 2002, prior to the enactment of the American Recovery and Reinvestment Act in February 2009. CONCLUSION OF LAW The requirements for eligibility to a one-time payment from the Filipino Veterans Equity Compensation Fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2009); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION In this case, the Appellant seeks a one- time payment from the Filipino Veterans Equity Compensation Fund (hereinafter referred to as the "Fund.") The Board has reviewed the evidence of record to determine if the Appellant is eligible to claim this benefit or whether she may establish eligibility on an accrued basis, standing in the shoes of the deceased Veteran. Historically, the Philippine Islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were called into the service of the United States Armed Forces of the Far East by President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that the service of certain Filipino Veterans does not entitle them to receive full benefits administered by the Secretary U.S. Department of Veterans Affairs. 38 U.S.C.A. § 107 (West 2002). On February 17, 2009, the President signed the American Recovery and Reinvestment Act, intended for "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization." See Pub. L. No. 111-5, 123 Stat. 115 (2009). The legislation included a provision for the creation of the Filipino Veterans Equity Compensation Fund, providing one-time payments to "eligible persons" in the amount of $9,000 for non- United States citizens, or $15,000 for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). The Secretary of the Department of Veterans Affairs was charged with administering payments from the Fund to eligible persons. An "eligible person" is defined as any person who served 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 who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). Additionally, the person must have been discharged or released from such service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009). Significantly, subsection (c) of Section 1002 defines how and when a claim for payment from the fund is made. It provides: Payments.- (1) In General.- 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. (2) Payment to Surviving Spouse.- 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. Pub. L. No. 111-5, § 1002(c), 123 Stat. 115, 200-202 (2009). Here, the National Personnel Records Center has verified the Veteran's recognized service in the Philippine Commonwealth Army, including the recognized guerrillas, from November 1, 1944 to February 8, 1946. As such, the Veteran meets the definition of an "eligible person" under the law. When an "eligible person" dies, the law makes provision for payment to a surviving spouse, such as the Appellant, provided however, that the Veteran has first filed a claim for benefits. Here, the Veteran died in August 2002, prior to the passage of the law in February 2009 establishing the Fund. Thus, he could not have filed a claim for compensation from the Fund. The law contains no provisions providing for application for compensation prior to the establishment of the Fund. Even if such provision were in place, there is no evidence of a claim for benefits during the Veteran's lifetime. This is a case where the law is dispositive. Sabonis v. Brown, 6 Vet. App. 426 (1994). While the Board is sympathetic to the Appellant's claim, and grateful for the Veteran's service to this country, it finds no entitlement under the law to the benefits she seeks. The Appellant does not meet the basic eligibility requirements for a one-time payment from the Fund. Therefore, the claim must be denied based upon a lack of entitlement under the law. Notice and Assistance Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify a claimant of the information and evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)(1) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2010). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010). Here, the Board finds that because that claim is limited to statutory interpretation, the notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). The facts in this case are not in dispute and the Appellant's appeal must be denied as a matter of law. Thus, the Board finds that any deficiency in VA's VCAA notice or development action is harmless error. Pratt v. Nicholson, 20 Vet. App. 252 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive). ORDER The claim is denied as the Appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs