Citation Nr: 1339620 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 10-27 484A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from December 1941 to November 1944. He died June 25, 1994. The appellant is the Veteran's surviving spouse. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2010 decision, which denied the appellant's claim for one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC). The Board must note that in reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. It is noted that the appellant on several occasions suggested that she wished to be represented in her appeal. However, in her most recent statement that was received in March 2012, she indicated that she wished to proceed pro se. As such, per her expressed desire, the appellant is unrepresented in this case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in June 1994. 2. At the time of his death, no claim for FVEC benefits was pending. CONCLUSION OF LAW The criteria for payment to the appellant from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. §§ 101, 5107 (West 2002); 38 C.F.R. § 3.203 (2013); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2010). REASONS AND BASES FOR FINDINGS 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 February 17, 2009). 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 spouse of an eligible person is not identified as an eligible person in their own right. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies their service. Soria, 118 F. 3d at 749. In this case, the appellant's husband served in the U.S. Navy during World War II. However, he died in June 1994, approximately fifteen years before Congress enacted the legislation providing the Filipino Veterans Equity Compensation Fund. In November 2009, the appellant, as a surviving spouse, submitted an application for one-time payment from the Filipino Veterans Equity Compensation Fund. Unfortunately, as noted above, the American Recovery and Reinvestment Act generally does not permit recovery from the FVEC fund by surviving spouses, as spouses are not included in the definition of eligible persons. The one exception to this is that a surviving spouse can be paid benefits due and owing to a qualified person, but only if their spouse was eligible for payment from the FVEC, and had filed a claim following the enactment of the Act on February 17, 2009, but had died prior to the granting of the benefit. Here, even assuming that the appellant's deceased husband was an eligible person, he died in June 1994, fifteen years prior to enactment of Public Law 111-5. He therefore could not have filed a claim under the Act, and hence the appellant cannot collect benefits as a payee surviving spouse as a matter of law. The Board is sympathetic to the appellant's claim and is deeply appreciative of the Veteran's honorable military service, but the Board is bound by the law, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Here, the law is dispositive. Sabonis v. Brown, 6 Vet. App. 426 (1994). The appellant does not meet the basic eligibility requirements for a one-time payment from the FVEC fund. Therefore, her claim must be denied based upon a lack of entitlement under the law. VA's Duties to Notify and Assist Generally, upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. However, in this case, because the current claim is limited to statutory interpretation, the notice provisions do not apply. See Smith v. Gober, 14 Vet. App. 227, 230 (2000) (claim that a Federal statute provides for payment of interest on past-due benefits), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). ORDER Legal entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs