Citation Nr: 0812745 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-07 717 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Whether the appellant may be recognized as the child of the veteran for the purpose of VA death benefits, to include Dependency and Indemnity Compensation (DIC), death pension, and accrued benefits. ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The veteran served on active duty from October 1951 to November 1953. He died in November 1996. The appellant is advancing this appeal as the veteran's daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 determination letter by the RO. The RO determined, among other things, that the appellant had not established that she was the veteran's child, and thus denied her claim of entitlement to Dependency and Indemnity Compensation, death pension, and accrued benefits. In her February 2006 Substantive Appeal on Form 9, the appellant requested an opportunity to testify at a hearing before a Veterans Law Judge at the RO. In August 2006, the appellant withdrew her request for a hearing and, since that time, has not requested the opportunity to testify at another hearing. Hence, the Board finds that the appellant's request to testify at a hearing has been withdrawn. See 38 C.F.R. § 20.704. FINDINGS OF FACT 1. The evidence of record shows that the appellant was born in Culpeper County, Virginia on December [redacted], 1976; the appellant's father, as listed in the birth certificate was a particular person whose place of birth was listed as "Texas." 2. The service and VA records that refer to the veteran show his place of birth was Cedar Heights, Maryland; prior to his death in November 1996, the veteran is no shown to have identified the appellant as his dependent. 3. The veteran's assertions as being the child of the veteran are not supported by the requisite evidence to include affidavits, certified statements or other acceptable forms of proof required by VA. CONCLUSION OF LAW The appellant's application to be recognized as the child of the veteran for VA death benefit purposes must be denied by operation of law. 38 U.S.C.A. §§ 101(3), 103, 5107 (West 2002); 38 C.F.R. §§ 3.57, 3.204, 3.209 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b), the notification should include the request that the claimant provide any evidence in the claimant's possession that pertains to the claim. By way of a letter dated in January 2007, the appellant was furnished notice of the type of evidence needed in order to substantiate her claim. The appellant was also generally informed that she should send to VA evidence in her possession that pertains to the claim and advised of the basic law and regulations governing the claim, the cumulative information and evidence previously provided to VA (or obtained by VA on the appellant's behalf), and provided the basis for the decisions regarding the claim. The appellant was provided with adequate notice of the evidence which was not of record, additional evidence that was necessary to substantiate the claim, and she was informed of the cumulative information and evidence previously provided to VA, or obtained by VA on her behalf. In the present case, the Board notes that VA provided adequate VCAA notice only after the initial unfavorable decision in this case. While the notice provided was not given prior to the first RO adjudication of the claim, the notice was provided by the RO prior to the March and October 2007 Supplemental Statements of the Case and prior to the transfer and certification of the appellant's case to the Board. The Board also finds that the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and observes that the appellant has had time to consider the content of the notice and respond with any additional evidence or information relevant to the claim. Based on the above, the Board concludes that any defect in the timing of the VCAA notice is harmless error. See generally, Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). To decide the appeal on these facts would not be prejudicial error to the appellant. For the reasons above the Board finds that VA substantially complied with the specific requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate the claim and the relative duties of VA and the claimant to obtain evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies the VCAA notice); and 38 C.F.R. § 3.159(b) (the content of the notice requirement, pertaining to the evidence in the claimant's possession or a similar request to that effect). In this context, it is well to observe that VCAA requires only that the duty to notify be satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993). Sutton v. Brown, 9 Vet. App. 553 (1996). In addition, where the claim involves basic entitlement to service connection, the United States Court of Appeals for Veterans Claims (Court) held that the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply all of the elements of a claim for service connection, including notice that a disability rating and effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The reasoning of this case applies here. Despite the defective notice provided to the appellant on these latter two elements, however, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, supra. In this regard, as the Board concludes below that the preponderance of the evidence is against the appellant's claim, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. The Board also finds that VA has made reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (West 2002). In particular, the information and evidence associated with the claims file consists of the veteran's service records, post-service treatment records and reports, the veteran's death certificate, the appellant's birth certificate, and statements submitted by and on behalf of the appellant in support of the claim. Based on the foregoing, the Board concludes that there is no identified evidence that has not been accounted for with respect to the appellant's claim and that, under the circumstances of this case, VA has satisfied its duty to assist the appellant. Accordingly, further development and further expending of VA's resources is not warranted. See 38 U.S.C.A. § 5103A. II. Analysis. The appellant claims entitlement to VA death benefits (namely dependency and indemnity compensation (DIC), death pension, and accrued benefits) based on her status as the child of the veteran, who died in November 1996. VA death pension benefits are a monthly benefit payable by the Department of Veteran's Affairs to the surviving spouse or child because of a veteran's nonservice-connected death. 38 C.F.R. § 3.3(3). Dependency and Indemnity Compensation means a monthly payment made by the Department of Veteran's Affairs to a surviving spouse, child, or parent (i) because of a service-connected death occurring after December 31, 1956, or (ii) pursuant to the election of a surviving spouse, child or parent, in the case of such death occurring before January 1, 1957. In addition, upon the death of a veteran, a child may be paid periodic monetary benefits to which the veteran was entitled at the time of the veteran's death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when he died. 38 C.F.R. § 3.1000. The term "child" of the veteran means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired the status before the age of 18 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death, or an illegitimate child; and (i) who is under the age of 18 years; or (ii) who, before reaching the age of 18 years, became permanently incapable of self-support, or (iii) who, after reaching the age of 18 years an 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 C.F.R. § 3.57. In addition, the Board notes that, except as provided in paragraph (a)(2) of 38 C.F.R. § 2.204, VA will accept , for the purpose of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of marriage, birth of a child or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and, where the claimant's dependant child does not reside with the claimant, the name and address of the person who has custody of the child. Section (a)(2) provides that VA shall require the types of evidence indicated in sections 3.205 through 3.211 where: the claimant does not reside within a state; the claimant's statement on its face raises a question of its validity; the claimant's statement conflicts with other evidence of record; or there is reasonable indication, in the claimant's statement or otherwise, of fraud or misrepresentation of the relationship in question. 38 C.F.R. § 3.209 states that age or relationship is established by one of the following types of evidence: (a) a copy or abstract of the public record or birth, (b) a copy of the church record of baptism, (c) official report from the service department as to birth which occurred while the veteran was in service, (d) affidavit or certified statement of the physician of midwife in attendance at the birth, (e) copy of Bible or other family record certified to by a notary or other officer with authority to administer oaths, (f) affidavits or certified statements of two or more persons, preferably disinterested, who will state their ages, showing the name, date, and place of birth of the person whose age or relationship is being established, and that to their knowledge such person is the child of such parents (naming the parents) and stating the source of their knowledge, and (g) other evidence which is adequate to establish the facts in issue, including census records, original baptismal records, hospital records, insurance policies, school, employment, immigration, or naturalization records. 38 C.F.R. § 3.209. The claims file in this case contains of a copy of the appellant's birth certificate. This certificate shows that the appellant was born on December [redacted], 1976 in Culpeper County, Virginia. The appellant's father was listed as a particular person. The father's place of birth was listed as "Texas." The veteran's DD-214, however, lists the veteran's birth place as Cedar Heights, Maryland. The veteran's death certificate also lists the veteran's place of birth as Cedar Heights, Maryland. A careful review of the veteran's claims file indicates that the veteran never reported having any children and that he never claimed the appellant as his dependant. In support of her claim, the appellant submitted several statements in support of her assertion that she is the veteran's child. One statement is from MG, who identifies herself as veteran's sibling. This statement indicates that the appellant is the daughter of the veteran and JLD, and that the appellant was born in Boston, Virginia on December [redacted], 1976. Another statement is from DW, who also identified himself as a sibling of the veteran. This statement indicates that the appellant was born in Boston, Virginia on December [redacted], 1976 and that her father is the veteran and her mother is JLD. Finally, the appellant submitted the statement of CA, who identified herself as the appellant's mother's best friend. This statement stated that she has known the appellant since she was a child, that she was born in Boston, Virginia in 1976, and that she is the child of [redacted] and JLD. Significantly, none of these submitted documents is shown to have been certified or sworn under oath. Based on the foregoing, the Board finds that the evidence contained in the record, without more, is insufficient to establish that the appellant is the veteran's "child" for VA purposes. In this regard, the Board notes that the information on the appellant's birth certificate regarding her father, does not match the information regarding the veteran maintained by VA in the claims file. The appellant's birth certificate states that her father was born in Texas; the service records and death certificate indicate that the veteran was born in Cedar Heights, Maryland. In addition, the veteran's claims file does not indicate that the veteran had any children or had ever claimed the appellant as a dependant. While the Board notes that the appellant submitted the statements of several persons indicating that the appellant is the daughter of a particular individual, these documents do not shed light on whether this person is the veteran in this case or otherwise serve to resolve the apparent conflict between the appellant's birth certificate and the veteran's actual records gathered and maintained by VA. In this regard, the Board notes that where the claimant's statement conflicts with other evidence of record, as is the case here, VA shall require the types of evidence indicated in sections 3.205 through 3.211 in order to determine age or relationship. 38 C.F.R. § 3.204. 38 C.F.R. § 3.209 states that age or relationship is established by one of the following types of evidence: (a) a copy or abstract of the public record or birth, (b) a copy of the church record of baptism, (c) an official report from the service department as to birth which occurred while the veteran was in service, (d) an affidavit or certified statement of the physician of midwife in attendance at the birth, (e) a copy of Bible or other family record certified to by a notary or other officer with authority to administer oaths, (f) an affidavits or certified statements of two or more persons, preferably disinterested, who will state their ages, showing the name, date, and place of birth of the person whose age or relationship is being established, and that to their knowledge such person is the child of such parents (naming the parents) and stating the source of their knowledge. Here, the submitted documents from the persons reporting to be siblings of the appellant's father and a friend of the appellant's mother do not meet the requirements of the regulations. In order to be valid evidence under 38 C.F.R. § 3.209 (f), however, these statements regarding the appellant's birth must be affidavits or certified statements. This is required in order to certify the authenticity of the signer and the content. The statements submitted by the appellant, while potentially helpful, do not meet the criteria for affidavits or certified statements of two or more persons, as set out in 38 C.F.R. § 3.209(f). In this regard, the Board notes that the appellant has indicated that she has been attempting to amend her birth certificate to correct the place of birth for her father. Such an amendment, if obtained, would be helpful in establishing her status in this case. Statements that are compliant with the requirements of 38 C.F.R. § 3.209 would also be helpful. Without more, at this time, the current record is not sufficient to determine that the appellant is the veteran's "child" for purposes of receiving VA death benefits. Thus, the appeal must be dismissed on this basis. ORDER The application for recognition of the appellant as the child of the veteran, for the purpose of VA death benefits, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs