Citation Nr: 1304690 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 11-21 551 ) 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 (FVEC) Fund. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tabitha G. Macko, Counsel INTRODUCTION The Veteran had recognized active duty (Recognized Guerilla and Philippine Army) service from September 1943 to May 1946. He died in December 1975. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decisional letter by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, that denied the appellant's claim seeking compensation from the Filipino Veterans Equity Compensation Fund. Because whether a person seeking a VA benefit is a proper claimant for the benefit sought is a threshold matter in any claim for VA benefits. that is the matter before the Board. The Board notes that an appeal addressing another (separate) matter was remanded by the Board (by a Veterans Law Judge other than the undersigned) in October 2011. That matter has not been re-certified to the Board. 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 is not shown or alleged to have served in the service of the Armed Forces of the United States during World War II, and is not herself an eligible person for a one-time payment from the FVEC Fund; 2. The Veteran who was the appellant's spouse died in December 1975, many years prior to the enactment of the American Recovery and Reinvestment Act of 2009. CONCLUSION OF LAW The legal requirements to establish eligibility for a one-time payment from the FVEC Fund are not met. 38 U.S.C.A. §§ 101, 107 (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009); 38 C.F.R. §§ 3.1, 3.40, 3.41 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA need not be considered because the issue presented is solely one of statutory interpretation (and the claim by this claimant 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). The Board notes that it has reviewed all of the evidence of record, to include in the claims file and in "Virtual VA" file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. (Virtual VA does not contain any evidence or correspondence pertinent to the matter at hand.) The critical facts in this case are straight-forward, and are not in dispute. As is noted above, the Veteran in this case had recognized military service in the service of the United States Armed Forces in the Philippines; he died in December 1975. In February 2010, the appellant submitted a VA Form 21-4138 and a VA Form 21-4169 to apply for a one-time payment from the FVEC Fund. She submitted a marriage certificate and a certificate of the Veteran's registered death in December 1975. It is neither shown nor alleged that the appellant herself served in the service of the United States Armed Forces during World War II. Under the American Recovery and Reinvestment Act, a 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. As it is not shown (nor alleged) that the appellant served with military forces of the Philippines in the service of the Armed Forces of the United States during World War II, she is not (of her own right) an eligible person (as defined in Section 1002(d)). She contends that she is eligible for an FVEC fund payment because she is the surviving, unmarried spouse of the Veteran. She contends that to deny payment from the fund is arbitrary, unconstitutional, and illogical. It is not in dispute that the appellant's deceased spouse was a Veteran who (were he alive) would have been eligible for a payment from the FVEC Fund. Section 1002(c)(2) of the American Recovery and Reinvestment Act of 2009 authorizes a payment from the FVEC fund to a surviving spouse of an eligible person/veteran. However, the language of that provision limits the payment to the surviving spouse "of an eligible person who has filed a claim for benefits under this section" (emphasis added). Because the Veteran in this case died in 1975 (more than 33 years prior to enactment of the American Recovery and Reinvestment Act of 2009), he obviously had not filed a claim for such payment. In summary, there is no legal authority for the appellant to be a proper claimant for the benefit she seeks. The Board is not authorized to grant a benefit that is not authorized by law. See 38 U.S.C.A. §§ 511, 7104. Therefore, the law is dispositive in this matter, and the appeal in the matter must be denied because of the absence of legal merit/entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Finally, the appellant asserted in her substantive appeal that denial of a one-time payment to her is arbitrary, unconstitutional, and illogical. As noted above, the Board is bound by governing/authorizing law and regulations. A challenge to the constitutionality of a governing regulation exceeds the jurisdiction of the Board. 38 U.S.C.A. § 7104. In Johnson v. Robison, the United States Supreme Court noted the principle that adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies. Id., 415 U.S. 361, 368 (1974) (citations omitted). The United States Court of Appeals for Veterans Claims (Court) has also acknowledged this principle on a number of occasions. See Saunders v. Brown, 4 Vet. App. 320, 326 (1993) (citing Johnson ) ("[i]t has generally been thought that the adjudication of the constitutionality of congressional enactments is 'beyond the jurisdiction of administrative agencies,' including the BVA."). ORDER The appeal to establish entitlement of the appellant to a one-time payment from the FVEC Fund is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs