Citation Nr: 0813474 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-20 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to recognition as a child of the veteran for purposes of survivor's benefits. REPRESENTATION Appellant represented by: American Red Cross WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran had recognized military service during World War II. He died in November 1973. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2004 decision of the Department of Veterans Affairs Regional Office (RO) in Manila, the Republic of the Philippines. In that determination, the RO found that the appellant was not entitled to recognition as a child of the veteran for purposes of survivor's benefits. FINDINGS OF FACT 1. The appellant is 60 years of age. 2. It is not asserted, nor does the evidence show, that the appellant was permanently incapable of self-support before reaching the age of 18. CONCLUSION OF LAW The appellant is not a child of the veteran and is, therefore, not entitled to VA survivor's benefits on account of his service. 38 U.S.C.A. § 101(4) (West 2002); 38 C.F.R. § 3.57 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties To Notify And To Assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) set forth notice and assistance requirements on the part of VA in the adjudication of certain claims. The United States Court of Appeals for Veterans Claims (Court) has held that, when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to notify, nor the duty to assist, provisions of the VCAA are applicable. The Court has specifically recognized that the VCAA does not affect appeals which are limited to statutory interpretation. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) & Smith v. Gober, 14 Vet. App. 227, 231-232 (2000). In the instant case, eligibility for VA benefits as the child of a veteran is outlined by statute and regulation. Clearly, therefore, the Board's review of this appeal is limited to an interpretation of the pertinent law and regulation. As such, the Board finds that the VCAA does not appeal to the current appeal. [In any event, the appellant has received actual notice of the type of evidence needed to establish entitlement to survivor's benefits as the child of the veteran. See, e.g., a February 2002 letter, the July 2004 notice letter, the October 2004 statement of the case, the July 2005 supplemental statement of the case, and the transcript of the July 2006 personal hearing before the undersigned Veterans Law Judge (VLJ) at the RO. In September 2004, the appellant expressed her understanding of the basis of the RO's decision with an employee of that agency. Further, the appellant has not referenced any specific evidence supportive of her claim that the RO should obtain.] Analysis The appellant seeks recognition as a surviving child of the veteran for purposes of VA survivor's benefits. Essentially, the appellant contends that she is the adopted child of the veteran and, as such, is entitled to such benefits. According to VA law, 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 that 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 who is under the age of 18 years; before reaching the age of 18 years, became permanently incapable of self-support ; or, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4) (West 2002); 38 C.F.R. § 3.57 (2007). In the statement received at the RO in March 2002, the appellant's adopted mother explained that she and the veteran began taking care of the appellant when she (the appellant) was just a few months old and began adoption proceedings when she was seven years of age. The appellant's adopted mother stated that the adoption was finalized one year later. According to the November 1956 judgment, the veteran's wife adopted the appellant with the consent of her husband (the veteran). Even if the Board were to conclude that the appellant is the adopted daughter of the veteran, the appellant's claim for recognition as a child of the veteran must fail. Under the governing statute and regulation, and as the appellant has been advised by both the RO and the undersigned VLJ, to establish that she is a "child of the veteran," she must prove that she either is under the age of 18, permanently became a "helpless child" incapable of self-support prior to reaching the age of 18, or, after reaching the age of 18 (but prior to reaching the age of 23) attended school. The record contains no birth certificate verifying the appellant's date of birth. At the personal hearing conducted before the underlying Veterans Law Judge at the RO in July 2006, however, the appellant testified that she was born in April 1948. Hearing transcript (T.) at 2. This testimony is consistent with other information contained in the claims folder. For instance, the November 1956 judgment effectuating her adoption indicates that the appellant was 8 years of age at that time. Moreover, in a July 2001 letter, an employee of the Social Welfare and Development Center in the Philippines noted that the appellant, who was a client, was 53 years of age. In a statement received at the RO in March 2002, the appellant's adopted mother explained that the appellant was born in Manila on April [redacted], 1948 and that three months thereafter the birth mother "gave her to us [the adopted mother and the veteran] and we had her baptized . . . when she was one year old." In a copy of an application for survivors benefits from the Social Security Administration and in a VA Form 21-534, Application For Dependency And Indemnity Compensation, Death Pension, And Accrued Benefits By A Surviving Spouse Or Child (Form 21-534), both of which were received at the RO in June 2004, the appellant provided her date of birth as April [redacted], 1948. A second Form 21-534 submitted in February 2005 also lists the appellant's date of birth as April [redacted], 1948. In a statement received at the RO in August 2007, two persons who know the appellant attested that she was born on April [redacted], 1948. Consequently, the Board finds that the appellant was born on April [redacted], 1948 and is, therefore, 60 years of age. Further, in the Forms 21-534 which were received at the RO in June 2004 and February 2005, the appellant stated that she is "slightly" disabled. Significantly, however, at no time has she asserted, or submitted competent evidence illustrating, that, prior to reaching the age of 18, she became a "helpless child" incapable of self-support. Clearly, therefore, the appellant is 60 years of age, is not between the ages of 18 and 23 attending school, and did not become a "helpless child" incapable of self-support prior to reaching the age of 18. As there is no provision in applicable VA laws and regulations that provides entitlement to survivor's benefits for veteran's children who are beyond the age of 23, the appellant's claim for recognition as a child of the veteran for purposes of survivor's benefits must be denied as a matter of law. ORDER The claim for recognition as a child of the veteran for purposes of survivor's benefits is denied. ____________________________________________ D. C. SPICKLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs