Citation Nr: 1325913 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-12 025 ) 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 Fund (FVEC). ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from December 1941 to September 1942 and from November 1944 to June 1946. He was a prisoner of war from April 10 to September 14, 1942, and died in December 2003. The appellant, who is the Veteran's son, appealed a May 2010 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. The appellant is the son of the Veteran, who died in December 2003. 2. On February 17, 2009, the American Recovery and Reinvestment Act of 2009, Public Law 111-5, was enacted, authorizing payments to eligible Filipino veterans through the FVEC. 3. There is no evidence that the Veteran filed a claim for a one-time FVEC prior to his death. CONCLUSION OF LAW The criteria for obtaining a one-time payment from the FVEC have not been 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 I. Duty 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, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist claimants in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (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) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). This is such a case. As discussed below, resolution of the appellant's claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits and qualifying service under the FVEC. The VCAA is therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). II. Factual Background and Legal Analysis Under the recently enacted 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 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, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . ." However, nothing in the 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 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. The surviving son of an eligible person is not identified as an eligible person in his own right. Thus, if an eligible person who filed an FVEC claim dies before payment is made, VA will pay the surviving spouse, if any, the rate of the veteran's entitlement. The evidence shows that the Veteran died in December 2003, six years prior to enactment of the law authorizing payment from the FVEC. In May 2011, the RO received an application for entitlement to the one-time FVEC payment from the appellant, who is the Veteran's son. The applicable regulations do not provide entitlement to the one-time FEVC payment to children of veterans. This is a case where the law is dispositive. Sabonis v. Brown, 6 Vet. App. 426 (1994). Based upon the record in this case, the Veteran died six years prior to enactment of the law authorizing payment from the FVEC. Thus, he did not file a claim for a one-time FVEC payment prior to his death and the appellant does not meet the basic eligibility requirements for establishing entitlement to a one-time payment from the FVEC fund. Therefore, the claim must be denied. (CONTINUED ON NEXT PAGE) ORDER Eligibility for the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs