Citation Nr: 1308015 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-43 991A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Eligibility for the one-time payment for the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The decedent served with the Philippine Guerrillas and the regular Philippine Army from November 1944 to May 1946. He died on April [redacted], 2003. The appellant in the current appeal is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the VA Regional Office (RO) in Manila, the Republic of the Philippines. The Board has not only reviewed the physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDINGS OF FACT 1. The decedent served with the Recognized Guerrillas and the regular Philippine Army from November 1944 to May 1946. 2. The decedent died in April 2003, prior to the enactment of the American Recovery and Reinvestment Act. CONCLUSION OF LAW The requirements for eligibility to a one-time payment from the FEVC fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act of 2009, Pub.L. No. 111-5, § 1002, 123 Stat. 115; 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. As will be discussed in further detail below, the Board finds that under the facts of the present case, the law is dispositive of the issue. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Where, as here, the law is dispositive in a matter, the notice provisions of the VCAA have no effect. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive); Smith v. Gober, 14 Vet. App. 227 (2000) (VCAA has no effect on appeal limited to interpretation of law) aff'd, 281 F.3d 1384 (Fed. Cir. 2002). VA also has no further duty to assist the appellant in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid her in substantiating her claim. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Wensch v. Principi, 15 Vet. App. 362, 368 (2001); cf. Valiao v. Principi, 17 Vet. App. 229, 231-32 (2003) ("[w]here the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, . . . [t]he failure to carry out . . . required development under those circumstances is nonprejudicial error"). Moreover, because the issue is not medical in nature, there was no duty to provide a medical examination or obtain a medical opinion. Analysis Pursuant to the American Recovery and Reinvestment Act of 2009, Congress established the "Filipino Veterans Equity Compensation Fund" (FVEC fund) and authorized VA to make one-time payments from the fund to eligible persons who submitted a claim within the one-year period beginning on the date of enactment. Pub.L. No. 111-5, § 1002, 123 Stat. 115. The act defined the term "eligible person" 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 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 (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. Section 1002 (c)(2) further 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. Despite the appellant's contentions, the Board notes that the American Recovery and Reinvestment Act does not permit recovery from the FVEC fund by surviving spouses. Spouses are not included in the definition of eligible persons. A surviving spouse can be paid benefits due and owing to a qualified person if such had filed a claim following the enactment of the Act on February 17, 2009, but had died prior to the granting of the benefit. In this case, the decedent did not have a claim pending at the time of his death as he died in April 2003, prior to the enactment of the American Recovery and Reinvestment Act. The appellant does not contend that her husband filed a claim for such benefits during his lifetime. Instead, the appellant argues that she should receive the one-time payment from the FEVC fund because her husband worked in the United States for 15 years, she has a minor child under her care, she is not receiving Dependency and Indemnity Compensation (DIC) benefits, she is a beneficiary of the intestate property of her late husband, the next of kin doctrine applies to her, and the granting of her claim would pacify public uproar and promote fairness and peace. The Board notes that the appellant's DIC claim was denied in a separate March 2010 determination and she has indicated in subsequent statements that she does not dispute the basis for the denial of that claim, namely that her husband did not die in service or have a claim for service connection pending at the time of his death or otherwise was service-connected for any disability. The Board recognizes that she would be the beneficiary as the surviving spouse of any benefits owed by VA to the decedent or his estate at the time of his death. As discussed above, however, the American Recovery and Reinvestment Act clearly limits recovery of the one-time payment from the FEVC fund to eligible persons who had a claim pending at the time of their death. As this is not the case here, the appellant's status as beneficiary of her husband and his estate is moot, as no benefits are owed from the FEVC fund. As to the appellant's other arguments, while the Board is not unsympathetic to these arguments it is bound by the law and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). Accordingly, because the decedent was deceased at the time that the American Recovery and Reinvestment Act was enacted and thus could not have filed a proper claim for a one-time payments from the FVEC fund, the appellant cannot collect benefits as a payee surviving spouse and the claim must be denied as a matter of law. See Sabonis, 6 Vet. App. at 430. ORDER The appeal is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs