Citation Nr: 1305983	
Decision Date: 02/21/13    Archive Date: 02/27/13

DOCKET NO.  10-41 181	)	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.


ATTORNEY FOR THE BOARD

K. A. Kennerly, Counsel






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INTRODUCTION

The Veteran had recognized guerilla military service on behalf of the United States Armed Forces during World War II, serving from January 1, 1944, to February 2, 1944, and from March 4, 1944, to April 26, 1945.  The Veteran died in May 2002.  The Appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 administrative decision of the Manila, Republic of the Philippines, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Appellant's claim for a one-time payment from the FVEC Fund.  The Appellant submitted a Notice of Disagreement with this determination in May 2010, and timely perfected her appeal in September 2010.

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Appellant has been accorded the opportunity to present evidence and argument in support of the claim.  In her September 2010 substantive appeal [VA Form 9] she declined the option of testifying at a personal hearing.


FINDING OF FACT

The Veteran did not file a claim of entitlement to benefits under the FVEC Fund prior to his death; there is no provision under this fund for spousal benefits.





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CONCLUSION OF LAW

The requirements for eligibility for a one-time payment from the FVEC Fund are not met.  38 U.S.C.A. § 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012).

Congress, in enacting the VCAA, noted the importance of balancing the duty to assist with "the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim."  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  Where the law, and not the evidence, is dispositive of a claim, the VCAA is not applicable.  Id.  (VCAA not applicable to claim for non-service-connected pension when the claimant did not serve on active duty during a period of war, as required by law).  The United States Court of Appeals for Veterans Claims (Court) has held that, when the interpretation of a statute is dispositive of the issue on appeal, neither the duty-to-assist nor the duty-to-notify provisions of the VCAA are implicated.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004 (June 23, 2004).

Since the law is dispositive in the instant appeal, the Board finds that the provisions of the VCAA are not applicable to the Appellant's claim.  The Board concludes that no further notification or development of evidence is required.  Therefore, no useful purpose would be served in remanding this matter for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Appellant.  The Court has held that such remands are to be avoided.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

II.  The Merits of the Claim

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."  See American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 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.

For eligible persons who accept a payment from the FVEC Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . ."  However, nothing in this act "prohibit[s] a person from receiving any benefit (including health care, survivor, or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of this Act."

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) of the law also provides that VA will administer its provisions in a manner consistent with VA law including the definitions in 38 U.S.C.A. § 101 except to the extent otherwise provided in the statute.

In this case, the service department has determined that the Veteran served with the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941.  However, a one-time payment is only available from the FVEC Fund for eligible persons as defined by the statute; there is no provision for payments to surviving spouses, except on an accrued basis, where an eligible Veteran filed a claim for payment that was pending upon his death.  Thus, although the Veteran had valid military service for the purpose of the benefit in question, he died prior to the date of the law allowing this benefit and as the surviving spouse, the Appellant is not eligible for legal entitlement to a payment from the FVEC Fund.

Where the evidence of record does not show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Since the Veteran did not file a claim for payment for the benefit in question prior to his death, the Appellant does not meet the basic eligibility requirements for a one-time payment, and the claim must be denied based upon a lack of entitlement under the law.  While the Board has considered the argument from the Appellant, the Board is bound by the law currently in effect, and simply has no discretion to grant the benefit sought given the legal provisions cited above absent any modification of these provisions either by judicial interpretation or otherwise.  See 38 U.S.C.A. § 7104(c) (2012).




ORDER

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



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs