Citation Nr: 1312160 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 10-47 040A ) 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 Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service in the Philippine Commonwealth Army, including the recognized guerillas, from September 1943 to December 1945. He died in December 2001. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. Although the Appellant currently lives within the jurisdiction of the RO in Los Angeles, California, because this appeal involves a claim of entitlement to a one-time payment from the FVEC Fund, the RO of jurisdiction is in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. The service department has certified that the Veteran had honorable active service in the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States from September 15, 1943, to December 18, 1945, when he was honorably discharged. 2. The Veteran died on December [redacted], 2001. 3. The FVEC Fund was created as a result of The American Recovery and Reinvestment Act of 2009, which was enacted on February 17, 2009, approximately 8 years after the Veteran's death. 4. The Appellant's claim of entitlement to a one-time payment from the FVEC Fund was date-stamped as received by the RO on July 7, 2009. CONCLUSION OF LAW As the criteria for basic eligibility for a one-time payment from the FVEC Fund are not met, the claim is without legal merit. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Board acknowledges that, although the Appellant was not provided with pre-adjudication VCAA notice concerning her claim, the lack of notice was not prejudicial in this case. The United States Court of Appeals for Veterans Claims (Court) in Palor stated, "[I]n assessing whether the Appellant was prejudiced by VA's failure to notify him of the various methods available for proving Philippine Veteran status, the Court can conclude only that because the Appellant is currently ineligible for VA benefits as a matter of law based on the NPRC [National Personnel Records Center]'s refusal to certify the Appellant's service, he was not prejudiced by the section 5103(a) notice error." See Palor v. Nicholson, 21 Vet. App. 325, 332 (2007) (citing Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997)). In other words, a VCAA notice error like the one which occurred in this case is not prejudicial where the Appellant is not entitled to the benefit as a matter of law. See also Valiao v. Principi, 17 Vet. App. 229 (2003). In this case, the Veteran's honorable active service in the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States from September 15, 1943, to December 18, 1945, when he was honorably discharged, is not in dispute. This appeal turns instead on whether there was a pending claim for compensation from the FVEC Fund filed by the Veteran at the time of his death. A claim for compensation from the FVEC Fund filed by an eligible person within 1 year of the enactment of The American Recovery and Reinvestment Act of 2009 is a fundamental prerequisite to the payment of compensation to either Veterans with qualifying service or, as in this case, a Veteran's surviving spouse in cases where an eligible Veteran dies after filing a claim but before payment is made. See American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Because the Veteran died approximately 8 years before the FVEC Fund was created, it would have been impossible for him to have filed a valid claim prior to his death. Thus, the Appellant is ineligible for compensation from the FVEC Fund as a matter of law. See Smith v. Gober, 14 App. 227, 232-32 (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); 38 C.F.R. § 3.159(d)(3). The Board finds that, because the relevant service department (in this case, the U.S. Army) certified as early as March 1973 that the Veteran had honorable active service in the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States from September 15, 1943, to December 18, 1945, the facts and circumstances of his service are not in dispute and additional service department certification was not required. See Capellan v. Peake, 539 F.3d 1373 (2008) (finding that VA erred in denying the Appellant's claim with no review of subsequent evidence by the service department). The Appellant has not asserted that the lack of pre-adjudication VCAA notice was prejudicial to her. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board observes that notice as to what is required to substantiate a claim of entitlement to a one-time payment from the FVEC Fund, including VCAA notice, was provided to the Appellant in the October 2010 Statement of the Case. Her claim was readjudicated in October 2010 and in December 2012. Accordingly, the Board concludes that, because no reasonable possibility exists that providing the Appellant with further assistance will aid in substantiating her claim, the lack of pre-adjudication VCAA notice was not prejudicial. See also Sanders v. Nicholson, 487 F.3d 881 (2007), rev'd sub nom. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). And a remand to provide the Appellant with additional VCAA notice would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). In this case, it is the law, and not the facts, that are dispositive of the appeal. Thus, the Board finds that the general duties to notify and assist claimants under the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The Court has held that enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because the requirement of filing a claim for compensation from the FVEC Fund by an eligible Veteran is outlined in statute and regulation, the Board's review is limited to interpreting the pertinent law and regulations. See Smith, 14 Vet. App. 227, 231-32 (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), (d)(3). Given the foregoing, the Board will proceed to adjudicate the Appellant's claim. FVEC Fund Claim The Appellant contends that her husband served in the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States and, although he died in 2001, his service entitles her to a one-time payment from the FVEC Fund as his surviving spouse. Law and Regulations 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 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. Factual Background As noted above, a review of the claims file shows that the NPRC certified in March 1973 that the Veteran had honorable active service in the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States from September 15, 1943, to December 18, 1945, when he was honorably discharged. NPRC certified the Veteran's recognized guerilla service between September 15, 1943, and March 17, 1945, based on the reconstructed guerilla roster. A review of the claims file also shows that, in a letter to the Veteran dated in July 1978, the RO certified his honorable active service in the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States from September 15, 1943, to December 18, 1945, when he was honorably discharged. In an "Official Statement of the Military Service" dated on May 5, 1980, and included in the claims file, the U.S. Army Adjutant General confirmed the Veteran's honorable active service in the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States from September 15, 1943, to December 18, 1945, when he was honorably discharged. The U.S. Army Adjutant General also confirmed that the Veteran's honorable active service was pursuant to the Call of the President of the United States dated July 26, 1941. A review of the Veteran's death certificate, a copy of which is included in the claims file, shows that he died on December [redacted], 2001. As also noted above, the Appellant's application for compensation from the FVEC Fund was date-stamped as received by the RO on July 7, 2009. In a statement attached to her December 2010 substantive appeal (VA Form 9), the Appellant asserted that her husband's death prior to the enactment of the law which created the FVEC Fund "is not my fault. He died waiting and was not able to file for the one time benefit as he has already [sic] Alzheimer's disease during that time." (Emphasis in original.) Analysis The Board finds that the evidence is against the Appellant's claim of entitlement to a one-time payment from the FVEC Fund. The NPRC certified in March 1973 that the Veteran had honorable active service in the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States from September 15, 1943, to December 18, 1945, when he was honorably discharged. Thus, his status as a Veteran is not in dispute. See 38 U.S.C.A. § 101(2) (West 2002 & Supp. 2012). The Appellant's status as the Veteran's surviving spouse for VA compensation purposes also is not in dispute. See 38 U.S.C.A. § 101(3) (West 2002 & Supp. 2012). Given his honorable active service in the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States, between September 1943 and December 1945, the Veteran would have been eligible for a one-time payment from the FVEC Fund if he had filed a claim within 1 year of the enactment of The American Recovery and Reinvestment Act of 2009. Unfortunately, however, the Veteran died in 2001, approximately 8 years prior to the enactment of this law which created the FVEC Fund and authorized the one-time payment which the Appellant seeks in this case. See American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). In other words, as the RO noted in the December 2012 Supplemental Statement of the Case, the Veteran died many years before he could have filed a claim for a one-time payment from the FVEC Fund. Contrary to the Appellant's assertions in her December 2010 statement, the Veteran did not die waiting for a one-time payment from the FVEC Fund because this benefit did not exist and was not available to him at the time of his death. In summary, the Board finds that the Appellant's claim of entitlement to a one-time payment from the FVEC Fund must be denied as a matter of law as the Veteran did not file a claim for compensation from the FVEC Fund within 1 year of the enactment of The American Recovery and Reinvestment Act of 2009, which created such Fund. See Sabonis, 6 Vet. App. at 426. ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs