Citation Nr: 1336665 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-34 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of death. 3. Whether new and material evidence has been received to reopen a claim of entitlement to recognition of DC, the appellant's child, as a helpless child for the purposes of VA benefits. REPRESENTATION Appellant represented by: Glorioso S. Ganuelas, Agent ATTORNEY FOR THE BOARD P. Olson, 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 October 1997; the appellant is his widow. This case comes to the Board of Veterans' Appeals (Board) on appeal from decisions dated in December 2009 and February 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. The appellant's late husband died in October 1997. 2. The appellant submitted a claim for the one-time payment from the FVEC Fund on behalf of her late husband that was received by VA in March 2009, many years after his death. 3. A request to reopen a claim for service connection for cause of death was denied by a June 2008 rating decision that was not appealed. 4. Evidence submitted subsequent to the June 2008 rating decision is cumulative of the evidence of record at the time of the last prior final denial and does not relate to an unestablished fact necessary to substantiate the claim. 5. A claim for recognition of DC as a helpless child of a veteran was denied by a June 2008 rating decision that was not appealed. 6. Evidence submitted subsequent to the June 2008 is cumulative of the evidence of record at the time of the last prior final denial and does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The requirements for eligibility to a one-time payment from the Filipino Veterans Equity Compensation Fund 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). 2. The June 2008 rating decision which denied service connection for cause of death is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 3. New and material evidence has not been received, and the claim of entitlement to service connection for cause of death is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. The June 2008 rating decision which denied the appellant's claim for entitlement to VA benefits based on a showing that her child over 18 years of age was permanently incapable of self-support by reason of mental or physical defect by the age of 18 is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 5. New and material evidence has not been received, and the claim of entitlement to recognition of DC, the appellant's child, as a helpless child of a veteran for the purposes of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). With respect to the claim for the one-time payment from the FVEC Fund, the Board may proceed with the issue on appeal at this time without reviewing the provisions of the VCAA. The United States Court of Appeals for Veterans Claims has held that, in a case where the law is dispositive of the claim, the claim should be denied for lack of legal merit under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). With respect to the requests to reopen previously denied claims, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in July 2009 of the information and evidence needed to reopen, substantiate, and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in June 2012. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to reopen and substantiate a claim. There is no evidence that additional records have yet to be requested. Filipino Veterans Equity Compensation Fund 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 March 2009. She does not argue, and the evidence does not show, that she is a person who meets the definition provided by Section 1002(d) as an "eligible person" 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. Unfortunately, as the decedent did not (and could 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. The law provides that an "eligible person" i.e., a living Veteran, must file the initial application. If, after that the eligible person has filed the application dies, benefits may be paid to a survivor. That was not possible in this case as the Veteran died long before the benefit was provided. The appellant cannot, by definition, be an "eligible person." 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, 6 Vet. App. at 426. New and Material Evidence to Reopen Previously Denied Claims In a decision dated in June 2008, the RO denied the appellant's request to reopen a claim for service connection for cause of death and denied the appellant's claim for entitlement to VA benefits based on a showing that her child over 18 years of age was permanently incapable of self-support by reason of mental or physical defect by the age of 18. The appellant did not appeal this decision. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). Thus, the June 2008 decision is final. The appellant's application to reopen her claims was received in July 2009. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Dependency and Indemnity Compensation (DIC) is awarded to a Veteran's surviving spouse for death resulting from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002). To establish service connection for the cause of a veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). By an October 2002 rating decision, service connection for the cause of death was denied on the basis that the evidence of record at that time failed to establish any relationship between the decedent's military service and his death. At the time of the October 2002 rating decision, the record contained the decedent's service records, a civil registry form indicating that the appellant and the decedent were married in September 1946, and a civil registry form indicating that the decedent died in October 1997 and that the cause of death was chronic airways obstruction not elsewhere classified. The record also contained a statement by the appellant concerning her late husband's antisocial behavior as well as the fact that he limped, and used a cane when walking due to edema and swollen right leg. The June 2008 rating decision denied the appellant's request to reopen her previously denied claim for service connection for cause of death on the basis that she had not provided any medical evidence in support of the claim and that the accumulated medical records on file did not show a link between the decedent's death-causing condition and his military service. The June 2008 rating decision indicated that review of service treatment records noted no treatment or diagnosis pertaining to the death-causing action and that the appellant had not provided VA with medical evidence showing a link between the decedent's death and military service. The additional evidence received since the June 2008 rating decision is only cumulative of the evidence of record at that time and does not relate to an unestablished fact necessary to substantiate the claim. Since June 2008, VA has received another death certificate noting the cause of death to be CVA and HPN, a duplicate of a statement previously submitted regarding the decedent's antisocial behavior and physical difficulties, and statements from the appellant. VA has not received medical evidence establishing a link between the decedent's death-causing condition and his military service. Thus, the Board finds that the evidence received since the June 2008 rating decision is cumulative of the evidence already of record at that time as there is still no medical evidence that the cause of the decedent's death was incurred in or aggravated by active service. Accordingly, the Board finds that the evidence received subsequent to the June 2008 rating decision is not new and material and does not serve to reopen the claim for service connection for cause of death. The June 2008 rating decision also denied the appellant's claim for recognition of her son, DC, as a helpless child for VA purposes. Survivor benefits may be awarded to a veteran's surviving spouse, children and parents when the veteran dies as a result of service-connected or compensable disability. See 38 U.S.C.A. § 1310. Dependency and indemnity compensation (DIC) are payable to a child of a veteran. 38 U.S.C.A. §§ 101(14), 1313, 1542 (West 2002); 38 C.F.R. § 3.5 (2012). To establish status as a surviving child of a veteran, a child must be unmarried and must either be under the age of 18 or have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A) (West 2002); 38 C.F.R. §§ 3.57(a)(1)(3), 3.356 (2012). The term "child" for the purpose of VA benefits is defined as an unmarried child under the age of eighteen years; or before attaining the age of eighteen years became permanently incapable of self-support; and is a child of the veteran at the time of the Veteran's death. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. §§3.57, 3.1000(d)(2). The June 2008 rating decision specifically noted that that the appellant had not submitted medical evidence showing that DC had become helpless prior to the age of 18. Essentially all evidence concerned his current status and there are no school records, medical reports or other evidence demonstrating his situation in the first 18 years of his life. At the time of the June 2008 rating decision, the record contained a civil registry form indicating that DC was born in December 1948 and that the appellant was his mother and the decedent his father; statements from the appellant that her son, DC, was born a "paraplegic" and was under her care and custody for his entire life; photographs; and a lay statement from neighbors indicating that DC had been a moronic paraplegic since birth and was totally disabled and had been under the care and custody of the appellant. Unfortunately, additional evidence received since the June 2008 rating decision is only cumulative of the evidence of record at that time. Evidence received subsequent to the June 2008 rating decision includes lay statements from the appellant's neighbors indicating that DC was born a moronic paraplegic and that he was totally disabled and had been under the care and custody of the appellant, statements made by the appellant, and photographs of the appellant and DC. This evidence is cumulative of evidence already of record at the time of the June 2008 rating decision. The Board notes a VA Form 21-4138, Statement in Support of Claim, received by VA in December 2007, in which the appellant wrote that her son, DC, had been born as paraplegic and mentally retarded. Thus, lay evidence that DC was born disabled was already of record at the time of the June 2008 rating decision. The appellant also submitted a medical certificate dated in September 2010 which states that DC is a 61 year old male who has been diagnosed as having cerebral palsy, mental retardation, and bilateral clubfoot and needs a 24 hour caregiver to attend to his daily activities and need. Unfortunately, this medical evidence does not show that DC had become helpless prior to the age of 18. As such, the Board finds that the evidence received since the June 2008 rating decision is cumulative of the evidence already of record at that time and does not relate to an unestablished fact necessary to substantiate the claim. The Board further notes that as service connection for the decedent's cause of death has not been established, even assuming that the file contained medical evidence that DC had become helpless prior to the age of 18, there is no legal basis to grant DIC. Accordingly, the Board finds that the evidence received subsequent to the June 2008 rating decision is not new and material and does not serve to reopen the claim of entitlement to recognition of DC, the appellant's child, as a helpless child for the purposes of VA benefits and that there is no legal basis to award the benefit requested. ORDER Entitlement to the one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund is denied. New and material evidence not having been received, the claim for entitlement to service connection for the cause of death is not reopened. New and material evidence not having been submitted, the claim for entitlement to recognition of DC, the appellant's child, as a helpless child for the purposes of VA benefits, is not reopened. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs