Citation Nr: 1311339	
Decision Date: 04/05/13    Archive Date: 04/19/13

DOCKET NO.  10-47 273	)	DATE
	)
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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

D. Havelka, Counsel



INTRODUCTION

This matter 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, the Republic of the Philippines, which determined that the appellant had no legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.


FINDINGS OF FACT

1.  The decedent died in March 1979.

2. The appellant is the surviving spouse of the decedent.


CONCLUSION OF LAW

The requirements for eligibility to a one-time payment from the FVEC Fund are not met.  38 U.S.C.A. §§ 107 Note, 501(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.203 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

With respect to this appeal, VA's duties to notify and assist do not apply, as the issue is decided as a matter of law.  Manning v. Principi, 16 Vet. App. 534, 542-43 (2002).

The American Recovery and Reinvestment Act was enacted February 17, 2009 and provides a one-time benefit 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, codified at 38 U.S.C.A. §§ 107 Note (West 2002 & Supp. 2011).  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 Filipino Veterans Equity Compensation 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 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 (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.

The record does not reflect whether or not that the decedent was an eligible person within the criteria of this law, because the required verification of service from the appropriate United States service department or the National Personnel Records Center (NPRC) has not been obtained.  See, 38 C.F.R. § 3.203.  Nevertheless, whether the decedent was an eligible person to receive benefits is not the dispositive issue before the Board.  Rather, the dispositive issue before the Board is the appellant's status as a claimant in this case.

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.  

The appellant has submitted a copy of a marriage certificate which shows that she is the surviving spouse of the decedent.  The record also includes a certificate of death showing that the decedent died on March [redacted], 1979.  As the decedent died in March 1979, almost three decades years prior to enactment of Public Law 111-5, a claim was not filed under the American Recovery and Reinvestment Act.  The one year period for filing such claims began in February 2009.  

The Board has considered the appellant's arguments for entitlement to the benefit sought.  However, as the law and not the evidence of record is dispositive in this case, the claim must be denied because of the lack of legal entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).



ORDER

The appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund; the appeal is dismissed.



____________________________________________
JOY A. MCDONALD 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs