Citation Nr: 1315482 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 12-07 248 ) 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 Stephanie L. Caucutt, 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 November 2009 and the appellant is his widow. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, that denied the appellant's claim of eligibility for the one-time payment from the FVEC Fund. 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 appellant's late husband died in November 2009. 2. The appellant submitted an initial application for the one-time payment from the FVEC Fund on behalf of her late husband that was received by VA in January 2010, several months after his death. CONCLUSION OF LAW The requirements for eligibility to a one-time payment from the Filipino Veterans Equity Compensation Fund are not met. 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. § 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Pre-adjudicatory notice was not provided in this case. However, in this case, as explained below, the law, and not the evidence, is dispositive. Therefore, VA's duties to notify and assist a claimant do not apply in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Thus, it is not necessary to determine whether VA fulfilled the duties in this case; and there is no prejudice to the appellant in the Board proceeding to adjudicate her claim. Analysis 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.' American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 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. An eligible person is defined as any person who served 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 dated July 26, 1941. That includes any person who served in military units such as the 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; as well as any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). Additionally, the person must have been discharged or released from such service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115 (2009). 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. In other words, when an 'eligible person' dies, the law makes provision for payment from the FVEC Fund to a surviving spouse provided that the veteran has first filed a claim for such benefits. In this case, the appellant's application for a one-time payment from the FVEC Fund was received in January 2010. She does not argue, and the evidence does not show, that she is a person who meets the definition provided by Section 1002(d) and is personally eligible for payment from the Fund. Rather, she contends that her late spouse met the criteria, and thus (as his surviving spouse) she may receive payments on his behalf. She has submitted documentation from the Philippine Veterans Affairs Office (PVAO) and the Philippine Office of the Adjutant General (OTAG) in support of her claim. In statements associated with the file, the appellant admits that her husband did not file an application during his lifetime. Rather, as explained in the May 2011 notice of disagreement, following enactment of Pub. L. No. 111-5, her late husband contacted the PVAO for information regarding the appropriate steps to file an application as well as the documentation required for such application. Thereafter, he (and his family) made efforts to obtain the necessary documentation from the Philippine OTAG. Such evidence, unfortunately, was not received until December 2009, approximately one month following the death of the appellant's husband. The Board is sympathetic to the appellant's claim. However, since, as admitted by the appellant herself, the decedent did not file a claim for compensation from the FVEC fund prior to his death, the appellant is not eligible to receive any payments on his behalf. See § 1002(c)(2). Absent some assertion that her husband actually submitted a claim to VA prior to his death, there is no legal authority to make this onetime payment. An award is precluded by law. In sum, the appellant does not meet the basic eligibility requirements for a one-time payment from the FVEC Fund, and there is no legal basis on which her claim could be granted. As the law, and not the evidence, is dispositive in this case, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to the one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs