Citation Nr: 1312749 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 11-29 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to payment from the Filipino Veterans Equity Compensation (FVEC) fund. ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The decedent had unverified service in the Army of the Philippines and the recognized guerillas from August 1943 to March 1946. The decedent died in June 1995. The appellant is claiming as the surviving spouse of the decedent. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Manila, the Republic of the Philippines. 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 decedent died in June 1995. 2. At the time of his death, the decedent did not have a pending claim for Filipino Veterans Equity Compensation (FVEC) fund benefits. CONCLUSION OF LAW A one-time payment from the FVEC fund is denied as a matter of law. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.1 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the appellant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the appellant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the appellant about the information and evidence that VA will seek to provide; and (3) inform the appellant about the information and evidence he is expected to provide. Nevertheless, in Manning v. Principi, 16 Vet. App. 534 (2002) (citing Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001) (en banc)), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive in the matter. In the case at hand, the appellant has been found to lack legal entitlement to the benefit sought on appeal. Under the circumstances, there is no possibility that the appellant's claim for benefits might be substantiated. Accordingly, further consideration of the provisions of the VCAA is not necessary in this case. In the circumstances of this case, a remand to have the RO take additional action would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to a claimant are to be avoided). The VA has satisfied any obligation to notify and assist the claimant in this case. Further development and further expending of VA's resources is not warranted. Thus, adjudication of this issue at this time is warranted. The appellant, claiming as the surviving spouse of the decedent, seeks a one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC) under the American Recovery and Reinvestment Act of 2009 (Act), Pub. L. No. 111-5, Section 1002. This Act provides that a one-time payment may be made to an eligible person upon the receipt of a timely application for such compensation. In order to qualify for the benefit, there must be affirmative evidence that the claimant is a "veteran" for the purpose of benefits administered by VA, which requires that the claimant have qualifying military service. See 38 C.F.R. § 3.1 (2012). Section 1002(d) of the Act provides that a person is eligible for the payment if he or she had qualifying service defined as service 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; and was discharged or released from service under conditions other than dishonorable. 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. In the present case, VA need not make a finding regarding the eligibility status of the decedent, for the reasons to be discussed below. The decedent died on June [redacted], 1995, and this fact is not in dispute. The appellant claims as the decedent's surviving spouse, and has made no assertion that she herself has any qualifying service. Benefits under the FVEC, however, are not included among the specific benefits that can be awarded to survivors of deceased veterans. See 38 U.S.C.A. §§ 1151, 1310, 1318 (West 2002). In the absence of entitlement to FVEC compensation as a surviving spouse, the appellant's claim lacks legal merit. While an accrued benefits claim has not specifically been asserted, VA is bound to consider all pertinent theories of entitlement, whether or not a theory is raised by the appellant. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir.2000) (holding that a claim for compensation should be broadly construed to encompass all possible theories of entitlement). Accrued benefits, however, apply to periodic monetary benefits or monthly benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death. See 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). The American Recovery and Reinvestment Act does not permit recovery from the FVEC by surviving spouses, and the appellant concedes as much in her November 2011 VA Form 9. 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 an eligible veteran 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, there is no indication in the claims file, and no assertion on the part of the appellant, that her deceased spouse ever filed a claim for FVEC benefits during his lifetime; indeed, the decedent died many years prior to the passage of the Act, a fact conceded by the appellant. Therefore, the claimant cannot collect benefits as a payee surviving spouse as a matter of law and there are no unpaid benefits in this case that could be subject to an accrued benefits claim. The appellant in essence concedes within the November 2011 VA Form 9 her lack of entitlement to the benefit claimed, and makes an argument for the award of this benefit on an equity basis. The Board, however, lacks legal authority to grant the benefit sought on such a basis, and her claim must be denied as lacking entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs