Citation Nr: 1325169	
Decision Date: 08/08/13    Archive Date: 08/13/13

DOCKET NO.  11-27 794	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
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

Jeanne Schlegel, Counsel



INTRODUCTION

A brief review of the history reveals that the appellant's (now deceased spouse) F.S, had filed a claim for a one-time payment from the FVEC Fund, which was received by the VA RO in Manila, the Republic of the Philippines, in late February 2009.  He died in May 2009.  The file contains correspondence on file from VA dated June 10, 2009 informing the already deceased claimant, of the denial of the claim.  In June 2009, the appellant informed VA of the death of F.S. and requested that all benefits due to him be provided to her.  In July 2009, the appellant filed her own claim for a one-time payment from the FVEC Fund.  

Because F.S. died prior to the expiration of the one-year period for filing an appeal of the RO's June 2009 adverse decision, and since he never actually received notification of that decision during his lifetime, his claim must be regarded as having been "pending" at the time of his death.  38 C.F.R. §§ 3.160(c), (d), 20.200, 20.201, 20.302 (2012).  

The RO has implicitly recognized the appellant as F.S.'s surviving spouse (see Statement of the Case (SOC), issued to her in August 2011 as well as Supplemental SOC issued to her May 2013).  She is prosecuting this appeal to the Board of Veterans' Appeals (Board) under a provision of the American Recovery and Reinvestment Act that permits a surviving spouse to receive payment on behalf a claimant who filed a claim for a one-time payment from the FVEC Fund, but died before payment could be made.  American Recovery and Reinvestment Act § 1002(c)(2), Pub. L. No. 111-5 (Feb. 17, 2009).  In view of the RO's actions, and in light of the fact that it has addressed the merits of the appellant's appeal, the Board will accept, for purposes of this adjudication only, that the appellant is a proper claimant.  

This appeal to the Board arose from an October 2010 decision in which the RO denied the appellant's claim for a one-time payment from the FVEC Fund.  In January 2011, the appellant filed a notice of disagreement (NOD).  An SOC was issued in August 2011.  The appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2011.

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file.  An August 2013 review of the two documents in such file reveals that it is duplicative of the evidence in the paper claims file.  

In July 2013, the Vice Chairman of the Board advanced this appeal on the Board's docket on her own motion, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012).


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished.

2.  F.S filed a claim for a one-time payment from the FVEC Fund, which was received by the RO on February 24, 2009; the RO denied the claim in a decision dated June 10, 2009.  

3.  F. S. died in May 2009, prior to receiving notification of the denial of the claim; the RO has implicitly recognized that the appellant as his surviving spouse for purposes of pursuing the claim.  

4.  The National Personnel Records Center (NPRC) certified in both May 2009 and April 2013, that F.S. had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. 


CONCLUSION OF LAW

As the criteria for basic eligibility for a one-time payment from the FVEC Fund are not met, the appellant's 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

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (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) (2011).

In connection with the claim on appeal, the appellant has been notified of the reasons for the denial of the claim, and has been afforded the opportunity to present evidence and argument with respect to the claim.  The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the appellant.  As will be explained below, the claims lack legal merit.  As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  See also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter).

II.  Analysis

Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons.  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009).

For eligible persons who accept a payment from the FVEC Fund, the payment shall constitute a complete release of any claim against the United States by reason of such service.  However, nothing in the Act prohibits 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 the Act.  Id. § 1002(h).

VA 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 the Act, submitted to VA a claim for benefits under the Act.  The application for the claim shall contain the information and evidence VA requires.  Id. § 1002(c).  If an eligible person who has filed a timely claim for benefits under Act dies before payment is made, the payment shall be made instead to the surviving spouse, if any, of the eligible person.  Id. § 1002(c)(2).  

An eligible person is any person who 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 a 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and was discharged or released from such service under conditions other than dishonorable.  Id. § 1002(d).

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA.  38 C.F.R. § 3.203(c) (2011).  See Duro v. Derwinski, 2 Vet. App. 530 (1992).  Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department; not with VA.  A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service.  38 C.F.R. § 3.203 (2011); Soria, supra.

In a timely-filed claim, received on February 24, 2009, F.S. provided identifying information, including a service number, and contended that he was eligible for a one-time payment from the FVEC fund as a result of recognized guerilla service.  He reported that he had served with "B" Co, MP BN USAFIP NL. from April 1945 to November 1945.   

In April 2009, the RO requested verification of service by the applicable United States service department using the spelling of F.S.'s full name, his place and date of birth, reported dates of service and service number, and the unit designation provided in his supporting documents.  It was noted that his name was not listed in the reconstructed recognized guerilla roster.  

In May 2009, the National Personnel Records Center (NPRC) responded that F.S had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  As noted previously, F.S. died in May 2009.  

In July 2009, the appellant submitted: a her own FVEC formal claim based on F.S.'s service; a certificate of marriage issued in July 2009, reflecting that she married F.S. in February 1944; a copy of F.S.'s death certificate; and Certification from the Armed Forces of the Philippines dated in July 2009, describing F.S.'s service as guerilla and reporting his dates of service as April 1945 to February 1946.  

In September 2010, she provided evidence for the record which included copies of June 1945 (induction) and February 1946 (discharge) extracts of special orders 117 and 31, respectively, issued by USAFIP North Luzon, Camp Spencer, both of which included the Veteran's name.  

In January and April 2013, the RO again requested verification of service from NPRC, enclosing copies of evidence that had been submitted, as identified above.  Later in April 2013, NPRC responded that no change was warranted in the prior negative service certification.  

As noted above, statements and documentation pertaining to F.S.'s reported service in the recognized guerillas have been received from F.S - himself, and the appellant in an effort to support this claim.  However, none of that documentation or lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203 (2012).  On the contrary, that evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought.  Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the FVEC Fund.  

The NPRC has duly considered the present application for VA benefits and has twice, in both May 2009 and April 2013, certified that F.S. had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  The Board is bound by that certification.  See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies within the service department, not with VA).  

The Board is sympathetic to the appellant's situation.  However, the pertinent legal authority governing entitlement to payments from the FVEC Fund is clear and specific: it must be shown by verification of the United States service department that the underlying claimant has qualifying service.  The Board is bound by the law as written.  As, on these facts, there is no legal theory that would permit a one-time payment from the FVEC Fund, the appellant's claim must be denied as lacking legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  


ORDER

The claim for a one-time payment from the FVEC Fund is denied.




____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs