Citation Nr: 0814420 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 07-24 061A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim of eligibility for compensation as the child of a deceased veteran. REPRESENTATION Appellant represented by: American Red Cross WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The veteran served on active duty from September 1942 until he was killed in action in October 1944. The appellant was born in July 1941, and she is the child of the veteran. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision by the St. Petersburg, Florida Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO confirmed and continued a July 2002 decision denying the appellant compensation as the surviving child of a deceased veteran. FINDINGS OF FACT 1. VA paid wartime death compensation for the appellant, as the surviving child of the veteran, until the appellant reached age 18 in July 1959. 2. The appellant did not appeal the RO's July 2002 decision denying further compensation for her as the surviving child of the veteran. 3. Evidence received since July 2002 does not address the appellant's age, and does not indicate that she became permanently incapable of self support before reaching the age 18. CONCLUSIONS OF LAW 1. The RO's July 2002 decision denying further compensation for the appellant as the surviving child of the veteran is final. 38 U.S.C.A. § 7105 (West 2002). 2. Evidence received since July 2002 is not new and material to the claim for further compensation for the appellant; the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Request to Reopen Claim The VA claims file that is before the Board is in the veteran's name, and the file contains records pertaining to claims for VA benefits based on the veteran's service. The veteran had active service in World War II, and he was killed in action in October 1944. The claims file contains a copy of the appellant's birth certificate, which shows that the appellant is the child of the veteran. Documents in the claims file show that, in November 1944, the appellant's mother, the surviving spouse of the veteran, submitted a claim for VA death benefits for herself and the appellant. In February 1945, VA granted wartime death compensation to the appellant's mother as surviving spouse, to continue until her remarriage or death; and to the appellant, to continue until she reached age 18. The appellant's mother informed VA when she remarried in June 1945, and VA discontinued the wartime death compensation payable to her. In November 1946, VA determined that the appellant was entitled to receive ongoing wartime death compensation until she reached age 18. VA paid that compensation to the appellant through the appellant's mother, as custodian of the appellant, who was a minor. In April 1959, VA informed the appellant's mother that the compensation that she received for the appellant would be discontinued in July 1959, on the day before the appellant's eighteenth birthday. In March 2000, the appellant submitted a claim for VA benefits as a surviving child of a deceased veteran. In a April 2000 letter, the RO informed the appellant that they had considered whether she was entitled to dependency and indemnity compensation (DIC) or death pension. The RO denied entitlement to either benefit, because the appellant was not under age 18, and was not between the ages of 18 and 23 and attending school. The appellant did not appeal. In April 2002, the appellant again filed a claim for benefits as a surviving child of the veteran. In a letter dated July 31, 2002, the RO denied eligibility of the appellant for DIC, because the appellant was not under age 18, was not under age 23 and attending school, and had not been found, before her 18th birthday, to be permanently incapable of self support. The appellant did not appeal that decision and it is final. A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C.A. §§ 5108, 7104(b). If the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). The appellant submitted the most recent claim in October 2006. In order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the last time that the claim was finally disallowed on any basis (not only since the last time that the was disallowed on the merits). Evans v. Brown, 9 Vet. App. 273 (1996). The most recent final disallowance of the appellant's claim was the July 2002 decision. The Board will consider whether new and material evidence has been submitted since that decision. The evidence associated with the claims file in July 2002 included the birth certificate showing the appellant's date of birth and her status as the child of the veteran, and records of the claims for and award of compensation to the appellant from the veteran's death until she reached the age 18. The evidence that has been added to the claims file since July 2002 includes statements from the appellant, including testimony at a February 2008 hearing before the undersigned Veterans Law Judge. The appellant has raised a question as to whether her mother was properly appointed as the custodian of the appellant's VA benefits. She notes that her mother apparently failed to apply for Social Security benefits to which the appellant would have been entitled during her childhood. She has argued that mistakes were made by others acting on her behalf when she was a minor. In the 2000 and 2002 decisions, the RO addressed the appellant's claim as a claim for DIC. Because the veteran died before 1957, the benefit available to his surviving spouse and children is wartime death compensation. See 38 U.S.C.A. § 1121 (West 2002). For either wartime death compensation or DIC, a surviving child of a deceased veteran is defined as a person under the age of 18. 38 C.F.R. § 3.57 (2007). A person may also be considered to be a child of a veteran for benefits purposes if he or she is under the age of 23 and completing education, or if he or she became permanently incapable of self support before reaching the age of 18. 38 C.F.R. § 3.57(a)(ii), (iii). The appellant is over the age of 23. She has not contended that she became incapable of self support before the age of 18; and she has indicated that she has held employment during her adult life. The evidence indicates that VA paid wartime death compensation for the appellant during the appellant's childhood. VA paid that compensation through the appellant's mother, as custodian. The RO found in April 2000 and July 2002 that the appellant was not entitled to any new or additional compensation as the child of the veteran, because the appellant was no longer a child for purposes of such benefits. The evidence received since that time does not provide new information as to the appellant's date of birth, and does not include any claim that she became permanently incapable of self support before she reached the age of 18. None of the added evidence relates to any unestablished fact necessary to substantiate the current claim for wartime death compensation for the appellant as the child of the veteran. Therefore, the new evidence is not material to the claim. As VA has not received evidence that is both new and material to the claim, the Board must denying reopening of the claim . Under the law, VA cannot provide the appellant additional surviving child compensation after she has reached the maximum age. The Board nonetheless acknowledges and honors the veteran's service and sacrifice, and offers sympathy to the appellant for the loss of her father. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). Notice in a new and material evidence claim (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1 (2006). The appellant did not receive notice specific to her claim to reopen. While that error is presumed prejudicial, the record reflects that the purpose of the notice was not frustrated. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). In this case, the appellant does not meet the age or disability history requirements to be considered a child for purposes of further survivor's compensation. Thus, the benefit sought on appeal could not have been awarded as a matter of law. Under those circumstances, the notice error did not affect the essential fairness of adjudication of the appellant's claim, and the appellant is not prejudiced by adjudication of her appeal at this time. Nevertheless, the Board notes that in an October 2006 letter, the RO notified the appellant of the bases for the previous denial of her claim and what evidence would been needed to be entitled to the claimed benefits. The November 2006 RO decision explained the reasons for the denial of the claim. The August 2007 statement of the case provided the appellant with the relevant regulations for her claim, as well as an explanation of the reason for the denial of the claim. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate her claim, and as such, that she had a meaningful opportunity to participate in the adjudication of her claim such that the essential fairness of the adjudication was not affected. See Sanders, 487 F.3d at 489 ORDER The previously denied claim for further compensation for the appellant due to the death of her father, the veteran, is not reopened. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs