Citation Nr: 1301023 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 11-13 691 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Entitlement to the one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The appellant alleges that her late husband had service as a recognized guerrilla in the Philippines during World War II. He died in February 2009, and the appellant is his widow. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision by the RO in Manila, the Republic of the Philippines, that denied the appellant's claim of eligibility for the one-time payment from the FVEC Fund. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The appellant's late husband died on February [redacted], 2009, shortly after the enactment of the American Recovery and Reinvestment Act on February 17, 2009. 2. The initial application for the one-time payment from the FVEC Fund was apparently signed by the decedent on February 17, 2009, and was received by VA in November 2009, several months after his death. 3. The National Personnel Records Center (NPRC) has certified that the decedent 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 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. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Pre-adjudicatory notice was not provided in this case. However, in this case, as explained below, the law, and not the evidence, is dispositive. Therefore, VA's duties to notify and assist a claimant do not apply in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Thus, it is not necessary to determine whether VA fulfilled the duties in this case; and there is no prejudice to the appellant in the Board proceeding to adjudicate her claim. Analysis Under the 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 Feb. 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 (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. Section 1002(j)(2) also provides that VA will administer its provisions in a manner consistent with VA law except to the extent otherwise provided in the statute. When an "eligible person" dies, the law makes provision for payment from the Filipino Veterans Equity Compensation Fund to a surviving spouse, such as the appellant, provided that the Veteran has first filed a claim for such benefits. In cases for VA benefits where the requisite Veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on such matters is conclusive and binding on VA. See 38 C.F.R. § 3.203(c), Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In short, under 38 C.F.R. § 3.203, a claimant is ineligible for VA benefits based on Philippine service unless a United States service department documents or certifies his or her service. Soria, 118 F. 3d at 749. Here, the NPRC has declined to certify the decedent's alleged service. In a March 2010 response, the NPRC indicated the decedent "has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces." The appellant's application for a one-time payment from the FVEC Fund was received in November 2009. She does not argue, and the evidence does not show, that she is a person who meets the definition provided by Section 1002(d) and is personally eligible for payment from the fund. Rather, she contends that her late spouse met the criteria, and thus (as his surviving spouse) she may receive payments on his behalf. The initial application for the one-time payment from the FVEC Fund was apparently signed by the decedent on February 17, 2009. This application was first received by VA in November 2009, as demonstrated by a RO date stamp. In statements associated with the file, the appellant admits that she did not file his application until months after his death because of her grief at the loss of her husband of many years. The decedent's death certificate shows that he died on February [redacted], 2009, a few days after the operative law was enacted. Since, as admitted by the appellant herself, the decedent did not file a claim for compensation from the FVEC fund prior to his death, the appellant is not eligible to receive any payments on his behalf. On the appellant's VA Form 9 (substantive appeal), she contended that it was unfair that she did not receive the payment, because her late husband served the country. Her argument is, essentially, one for compassionate relief. While the Board is sympathetic to her claim, it finds no entitlement under the law to the benefit she seeks. The appellant does not meet the basic eligibility requirements for a one-time payment from the Filipino Veterans Equity Compensation Fund, and there is no legal basis on which her claim could be granted. As the law, and not the evidence, is dispositive in this case, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs