Citation Nr: 1327233 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 12-21 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC) Fund. ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION 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). The appellant alleges that her spouse served before July 1, 1946 in the organized military forces of the Government of the Commonwealth of the Philippines in service to the Armed Forces of the United States, or in the Philippine Scouts, and was discharged or released from service under conditions other than dishonorable, so as to be eligible to the one-time payment from the FVEC Fund. In March 2009, the appellant's spouse applied for these benefits claiming entitlement as an eligible Veteran for the one-time payment from the FVEC Fund. He died in February 2010. In an April 2010 letter the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, denied his claim on the basis that basic eligibility to VA benefits may be established on verification of valid military service by the National Personnel Records Center (NPRC) of the United States Government, and the NPRC was unable to verify that he served as a member of the Commonwealth Army of the Philippines, including the recognized guerillas, in the service of the Armed Forces of the United States. In August 2010, the appellant wrote to the RO and submitted a notice of disagreement to appeal the April 2010 denial of her spouse's claim. In October 2010 the RO notified the appellant that her August 2010 notice of disagreement could not be accepted because the decision denying her spouse FVEC benefits had become final as a result of his death. In January 2011 the appellant filed a claim for those benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 decision of the RO, which denied the benefits sought by the appellant. FINDING OF FACT The appellant is not shown, nor has she alleged, to have served during World War II in the service of the Armed Forces of the United States, and is not an eligible person for a one-time payment from the FVEC Fund under the American Recovery and Reinvestment Act; and is not a surviving spouse of an eligible person who filed a claim for benefits and died before payment was made. CONCLUSION OF LAW The requirements for a one-time payment from the FVEC Fund are not been met. 38 U.S.C.A. § 5101(a) (West 2002); American Recovery and Reinvestment Act, § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). NOTICE AND ASSISTANCE VA has a duty to notify and assist appellants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). These duties are not applicable to this appeal because the appellant has no legal entitlement to the benefit sought, as a matter of law. Nelson v. Principi, 18 Vet. App. 407, 409-10 (2004). No additional development could alter the evidentiary or procedural posture of this case. In the absence of additional evidence, no notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant). REASONS AND BASES FOR FINDING AND CONCLUSION 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 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. 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. The evidence does not show, nor has the appellant alleged, that she served with military forces of the Philippines in the service of the Armed Forces of the United States during World War II. Therefore she is not an eligible person by way of required service as defined in Section 1002(d) of the applicable law. The appellant in essence maintains she is eligible for a one-time FVEC fund payment because she is the surviving spouse of a veteran. As determined in an April 2010 RO decision that is now final, the appellant's deceased spouse was not eligible for a one-time payment from the FVEC Fund. Although Section 1002(c)(2) of the American Recovery and Reinvestment Act of 2009 authorizes a payment from the FVEC fund to a surviving spouse of an eligible person, such payment can only be made if such eligible person filed a claim for benefits under this section and died before payment is made under this section. As the appellant's spouse was not eligible to receive payment from the FVEC fund, the appellant as his surviving spouse is not authorized to receive such payment in his stead. In sum, there is no legal authority for the appellant to be a proper claimant for the benefit she seeks as defined by the American Recovery and Reinvestment Act of 2009, either as an eligible person in her own right, or as a surviving spouse of an eligible person. As a matter of law, a one-time payment from the FVCE Fund is not warranted. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs