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to testify at a hearing has been withdrawn.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