Citation Nr: 1314862 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 11-15 132 ) 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 R.N. Poulson, Counsel INTRODUCTION The appellant alleges that her late husband had service as a recognized guerrilla in the Philippines during World War II. He died in April 2001, and the appellant is his widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 determination of the Department of Veterans Affairs (VA) Regional Office (RO) 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). FINDING OF FACT The appellant's late husband died on April [redacted], 2001. CONCLUSION OF LAW The requirements for eligibility to a one-time payment from the FVEC Fund have not been met. 38 U.S.C.A. § 5101(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. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012), and implemented at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As the law is dispositive in the instant claim, the VCAA is not applicable. II. Analysis The appellant seeks compensation from the FVEC Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009) (to be codified in Title 38 of the United States Code: Veterans' Benefits). Under the American Recovery and Reinvestment Act, a one-time benefit is provided 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 (enacted February 17, 2009). 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. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). A surviving spouse can be paid benefits due and owing to an eligible person provided that the eligible person filed a claim following the enactment of the Act on February 17, 2009, but died prior to the granting of the benefit. Here, the Death Certificate of record establishes that the appellant's late husband died in April 2001, eight years prior to enactment of Public Law 111-5. He did not file a claim under the Act, and hence the claimant cannot collect benefits as a payee surviving spouse, as a matter of law. On the VA Form 9, the appellant contends that she should receive the payment despite the fact that her late husband died because he served the country. Her argument is, essentially, one for compassionate relief. While the Board is sympathetic to her claim, it finds no entitlement under the law to the benefit she seeks. This is a case where the law is dispositive. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The appellant does not meet the basic eligibility requirements for a one-time payment from the FVEC fund. Therefore, the claim must be denied based upon a lack of entitlement under the law. ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs