Citation Nr: 0812693 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 04-13 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Eligibility to receive dependency and indemnity compensation (DIC) benefits on account of the cause of the veteran's death. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Muhlfeld, Associate Counsel INTRODUCTION The veteran's personnel record shows active military service from February 1966 to February 1969, and from May 1969 to August 1978. The veteran died in September 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The appellant testified before the undersigned Veterans Law Judge at a video hearing in August 2005. A transcript of that hearing is of record. The Board notes that this claim was previously remanded by the Board in December 2005, in part to obtain additional evidence documenting that the appellant's child, on whose behalf the claim was made, is the child of the veteran. Although the claim was developed by the RO as a claim of entitlement to service connection for the cause of the veteran's death, the RO also addressed the question of eligibility, which issue will be decided below. The Board has re-characterized the issue accordingly. FINDINGS OF FACT 1. The appellant, mother of the child on whose behalf the claim was made, was not married to the veteran. 2. The evidence does not establish that the appellant's child is the child of the deceased veteran. CONCLUSION OF LAW Eligibility to receive Dependency and Indemnity Compensation benefits pursuant to 38 U.S.C.A. §§ 1310, 1313 has not been established. 38 U.S.C.A. §§ 1310, 1313 (West 2002); 38 C.F.R. § 3.57(a), 3.209, 3.210 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Such notice should be provided to a claimant prior to the initial unfavorable agency of original jurisdiction, (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). In the present case, the Board notes that VA apprised the appellant of its duty to notify and assist by way of VCAA correspondence dated in July 2001, May 2002, October 2002, and December 2006. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claim, any timing errors have been cured in the process of the previous remand and RO subsequent actions. Id.) Specifically, the notification informed her of what the evidence must show to establish eligibility to receive DIC, and service connection for the cause of the veteran's death, what additional evidence was needed from the appellant, what evidence was already in the RO's possession, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the appellant's behalf. Additionally, the RO requested that the appellant identify any information in her possession pertaining to the claim. The RO also provided a statement of the case (SOC) and a supplemental statement of the case (SSOC) reporting the results of its reviews of the issue and the text of the relevant portions of the VA regulations. The appellant was apprised of the criteria for assigning an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2006). This duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). Here, there is no indication that any additional action is needed to comply with the duty to assist. The Board notes that December 2006 letter mailed to the appellant specifically stated that additional evidence was needed to show that the appellant's child was also the veteran's child. The letter requested that the appellant submit a certified copy of the birth certificate or other types of evidence including, a copy of a church record of baptism, an official report from the service department concerning a birth which occurred while in service, affidavits or a certified statement from the doctor who delivered the child, or affidavits from two or more impartial persons showing name, address, and date of birth of the person making the statement, relationship of the person to the child whose birth is to be established, date and place of birth, and how the impartial person became aware of the birth facts. See 38 C.F.R. § 3.159(c)(1)(i) (claimant must cooperate fully with VA's reasonable efforts to obtain relevant records); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (duty to assist is not always a one-way street; if a[n appellant] wishes help, [s]he cannot passively wait for it when [s]he may or should have information essential in obtaining evidence). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The appellant (mother of the child who claims relationship to the veteran) contends that service connection for the cause of the veteran's death is warranted. She asserts that the veteran's service, particularly his exposure to herbicides while serving in Vietnam, led to his development of extensive cancer metastasis, which was the underlying cause of his death. The Board notes that before a determination of service connection for the cause of the veteran's death is warranted, the appellant, (or in this case, the appellant's child), must first meet the initial threshold requirement of eligibility for the benefit. In this regard, as will be discussed below, the Board finds that the appellant's child is not eligible for DIC benefits. Pertinent VA regulations state that a surviving child of a qualifying veteran who died of a service-connected disability is entitled to receive Dependency and Indemnity Compensation benefits. 38 U.S.C.A. § 1310 (West 2002 and Supp. 2007); 38 C.F.R. § 3.312 (2007). To be eligible for these benefits, it must be established that she is a "child" as defined by law and regulations. The definition of the term "child," as defined for VA purposes, means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household at the time of the veteran's death, or an illegitimate child. In addition, the child must also be someone who: (1) is under the age of 18 years; or (2) before reaching the age of 18 years became permanently incapable of self support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4); 38 C.F.R. § 3.57(a). In this case, the record reveals that the appellant's child was under 18 years of age at the time of the veteran's death. Specifically, the birth certificate noted that she was born in July 1984, and the veteran died in September 2000. Further, the record does not show that the child became permanently incapable of self support before reaching the age of 18. As such, based on the evidence in the record, the Board finds that the appellant's child meets the first element of the definition of "child" for VA Dependency and Indemnity Compensation (DIC) purposes. See 38 C.F.R. § 3.57(a). However, the second requirement necessary to establish eligibility for DIC is verification of the child's relationship as the daughter of the deceased veteran. In this regard, VA regulations state that as to the father of an illegitimate child, the sufficiency of evidence will be determined in accordance with the facts in the individual case. Proof of such relationship will consist of: (1) an acknowledgment in writing signed by the veteran; or (2) evidence that he has been identified as the child's father by a judicial decree ordering him to contribute to the child's support or for other purposes; or (3) any other secondary evidence which reasonably supports a finding of relationship, as determined by an official authorized to approve such findings, such as (i) a copy of the public record of birth or church record of baptism, showing that the veteran was the informant and was named as a parent of the child; or (ii) statements of persons who know that the veteran accepted the child as his; or (iii) information obtained from service department or public records, such as school or welfare agencies, which shows that with his knowledge the veteran was named as the father of the child. 38 C.F.R. § 3.210. In this case, the Board finds that the record does not contain sufficient evidence to show that the appellant's child was the illegitimate child of the deceased veteran. Specifically, available evidence includes a birth certificate which lists the appellant as the mother of the child. The child's name includes a middle name that is the same as the last name of the veteran, but the certificate does not list the deceased veteran as the father. Additionally, no acknowledgment in writing signed by the veteran has been submitted identifying him as the father; nor has proof been submitted of any judicial decree ordering the veteran to contribute to the child's support. Further, the appellant has not submitted a copy of the public record of birth or church record of baptism showing that the veteran was the informant and was named as a parent of the child; nor has the appellant submitted information obtained from a service department or public records, such as a school or welfare agency, showing that with his knowledge the veteran was named as the father of the child. The only other evidence submitted in an attempt to verify the relationship between the child and the veteran consists of computer printouts that the appellant claims to be proof of child support payments, and two notarized statements from unknown individuals (although one may have been the veteran's sister) stating that the child is the biological daughter of the veteran. After examining the documents, the Board does not find them sufficient to show the relationship between the veteran and the child, as required by regulation. Specifically, one computer printout shows that the child was eligible for social security supplemental income, based on being a disabled child, but noted that payments were never made. Although this computer printout contains the social security number of the veteran (and a hand written version of the veteran's social security number) on the document, this is not sufficient to verify the relationship at issue. The document in no way makes it clear that the veteran is the father of the child. The other computer printout is also insufficient to verify status as the daughter of the veteran. This document is entitled "CSS Payments/Disbursements" and contains the name of the appellant and the veteran at the bottom of the page, but does not mention the child. Further, the two notarized documents that were submitted in support of the claim, simply state "to whom it may concern: I [person's name], do acknowledge that [the named child] is the biological daughter of the deceased [veteran]., SS# [XXX- XX-XXXX]." Neither one of the statements contains an explanation regarding how the individual knew the veteran (although one appears to have been a sister of the veteran), nor a statement to the effect that the individual knew the veteran had accepted the child as his own, both of which are required by VA regulations for the statement of an impartial person to be accepted as proof of the relationship. In sum, after a review of the evidence of record, the Board finds that although the appellant's daughter was under 18 at the time of the veteran's death, the evidence does not lead to the conclusion that her child was the veteran's daughter, as required by 38 C.F.R. § 3.210. As such, the Board finds that the appellant's daughter is not eligible for DIC benefits. ORDER Eligibility to receive DIC benefits on account of the cause of the veteran's death has not been established; the appeal is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs