Citation Nr: 1303076 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 10-30 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to VA death benefits as the child of a Veteran. ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The alleged Veteran had alleged active military service from July 1942 to September 1945. The appellant is the son of the alleged Veteran. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 determination letter of the Department of Veterans Affairs (VA), Regional Office (RO) in Manila, Philippines. The appellant was scheduled for Travel Board hearing in April 2012, to which he failed to report. Accordingly, the Board considers the appellant's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2012). FINDINGS OF FACT 1. The alleged Veteran died in June 1971. 2. The appellant is the alleged Veteran's child. 3. The appellant, who was born in January 1940, attained the age of 18 in June 1958. 4. There is no competent credible evidence of record that before attaining the age of eighteen years, the appellant became permanently incapable of self-support. 5. The service department verified that the alleged Veteran did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. 6. There is no evidence of record that the alleged Veteran was service-connected for any disability at the time of his death, or that he had a claim pending for entitlement to service connection for a disability at the time of his death. 7. An application for accrued benefits was not made within one year of the alleged Veteran's death. CONCLUSION OF LAW The criteria for entitlement to VA death benefits, to include accrued benefits, have not been met. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. § 3.3, 3.57, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. There are some claims, however, to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Specifically, the VCAA has been held not to apply to claims that, as in this case, turn on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is inapplicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought.) As such, no further action is required pursuant to the VCAA. Legal criteria Veteran Status Eligibility for VA benefits is governed by statutory and regulatory law which defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C.A. §§ 101(2), 101(24) (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2012). "Veteran" is defined as a person who served in the active U.S. military, naval or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2012). A "veteran of any war" is defined as any veteran who served in the active military, naval or air service during a period of war. 38 C.F.R. § 3.1(e) (2012). Service as a Philippine Scout is included for pension, compensation, dependency and indemnity compensation (DIC) and burial allowances, except for those inducted between October 6, 1945 and June 30, 1947, inclusive, which are included for compensation benefits, but not for pension benefits. Philippine eligibility for nonservice-connected pension is covered by 38 C.F.R. § 3.40(a) as follows: Service in the Regular Philippine Scouts, the Insular Force of the Navy, Samoan Native Guard, and Samoan Native Band of the Navy is included for pension, compensation, dependency and indemnity compensation, and burial allowance. Persons who served in the Commonwealth Army of the Philippines, by contrast, are not entitled to nonservice-connected disability pension as governed by 38 C.F.R. § 3.40(c): Service is included, for compensation, dependency and indemnity compensation, and burial allowance, from and after the dates and hours, respectively, when they were called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, United States Army, pursuant to Military Order of the President of the United States dated July 26, 1941. For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows the following: (1) service of four months or more; (2) discharge for disability incurred in the line of duty; or (3) ninety days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability. 38 C.F.R. § 3.203(b). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). Findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also Venturella v. Gober, 10 Vet. App. 340 (1997). Death Pension Death pension benefits are generally available to a surviving spouse or child, as a result of the Veteran's nonservice-connected death. See 38 U.S.C.A. § 1541(a) (West 2002). An appellant is entitled to these benefits if the Veteran served for 90 days or more, part of which was during a period of war; or, if the Veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected, which would have justified a discharge for disability; and, if the appellant meets specific income and net worth requirements. See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3. Child The child of a Veteran who has died from a service-connected disability or compensable disability may be entitled to receive dependency and indemnity compensation, including service connection for the cause of the Veteran's death. 38 U.S.C.A. § 1310. The term "child" for the purpose of VA benefits, including dependency and indemnity compensation, including service connection for the cause of the Veteran's death, is defined as an unmarried child under the age of eighteen years; or before attaining the age of eighteen years became permanently incapable of self-support; and who is a child of the Veteran at the time of the Veteran's death. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. §§3.57, 3.1000(d)(2). To establish entitlement to the benefit on the basis of being a helpless child, the determination is made solely on the basis of whether the child was permanently incapable of self-support by reason of physical or mental defect. The question of permanent incapacity for self-support is one of fact. 38 C.F.R. §3.356 (2010). The principal factors for consideration are: (1) The fact that a claimant is earning her own support is prima facie evidence that she is not incapable of self-support. (2) A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of 18 years, may be so held at a later date even though there may have been a short intervening period or periods when her condition was such that she was employed, provided the cause of incapacity is the same as that upon which the original determination was made and there were no intervening diseases or injuries that could be considered as major factors. Employment which was only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapability of self-support otherwise established. (3) Employment of a child prior or subsequent to the delimiting age may or may not be a normal situation, depending on the educational progress of the child, the economic situation of the family, indulgent attitude of parents, and the like. In such cases there should be considered whether the daily activities of the child in the home and community are equivalent to the activities of employment of any nature within the physical or mental capacity of the child which would provide sufficient income for reasonable support. Lack of employment of the child either prior to the delimiting age or thereafter should not be considered as a major factor in the determination to be made, unless it is shown that it was due to physical or mental defect and not to mere disinclination to work or indulgence of relatives or friends. (4) The capacity of a child for self-support is not determinable upon employment afforded solely upon sympathetic or charitable considerations and which involved no actual or substantial rendition of services. 38 C.F.R. §3.356 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Accrued Benefits Upon the death of a Veteran, periodic monetary benefits to which he was entitled, on the basis of evidence in the file at the date of death (accrued benefits) and due and unpaid, may be paid to certain parties. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c). Analysis The Board finds, as discussed in further detail below, that the appellant is not entitled to VA benefits because the appellant is not a "child" for VA benefit purposes and because the alleged Veteran is not a "veteran" for VA benefit purposes. The appellant was born in January 1940, and attained the age of 18 in January 1958. The appellant asserts that he is the son of the alleged Veteran and there is no evidence to the contrary. The alleged Veteran, the appellant's father, died in June 1971. There is no evidence of record that he was service-connected for any disability at the time of his death, or that he had a claim pending for entitlement to service connection for a disability at the time of his death. The appellant filed a claim for death benefits in November 2008. (The Board notes that the application is dated in 2006; however, the evidence does not reflect that it was received by VA until November 2008.) The appellant asserts that he is entitled to death benefits based on being a child of the alleged Veteran. Initially, the Board notes that the appellant is older than 18, having attained that age more than five decades ago. At the time of his application for death benefits, the appellant was 68 years old. The appellant has not made any contentions, and there is no medical evidence of record, that he was permanently incapable of self-support by reason of physical or mental defect, prior to attaining the age of 18. As noted above, the term "child" for VA benefit purposes is defined as an unmarried child under the age of eighteen years; or before attaining the age of eighteen years became permanently incapable of self-support. In addition to his age as a bar to benefits, the evidence reflects that the appellant is married; he submitted an affidavit, dated in November 2008, in which he stated that he is married. Based on the foregoing, the appellant is not entitled to benefits as the child of a veteran. As noted above, the alleged Veteran was not service connected for any disability at the time of his death in 1971, and did not have a claim pending at the time of his death. The appellant asserts that he bore the expenses of his father's sickness and burial. Accrued benefit claims must be filed within one year from the date of the Veteran's death. Thus, any claim for accrued benefits would have had to have been filed in 1972; it was not. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c) (2012). Based on the foregoing, the Board finds that, as a matter of law, the appellant is not entitled to accrued benefits. In addition, and importantly, the Board notes that the alleged Veteran is not a "veteran" for VA purposes. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012); Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service. 38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). A VA Form 21-3101, Request for Information, dated in March 2011, is associated with the claims file. It reflects that the National Personnel Records Center (NPRC) response to the request for information, was that the alleged Veteran "has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces." Thus, the evidence is against a finding that the appellant's father is a "veteran" for VA purposes. The Board finds that the preponderance of the evidence is against a finding that the appellant is the child of a Veteran. In addition, even if he were the son of a Veteran, the evidence is against a finding that the appellant is under the age of 18, under the age of 23 and pursuing a course of education or training, or that he became permanently incapable of self support by reason of physical or mental defect prior to age eighteen. In sum, the appellant is not entitled to VA death benefits, to include dependency and indemnity compensation, death pension, and accrued benefits. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to VA death benefits as the child of the Veteran is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs