Citation Nr: 1303225 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-13 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant is a surviving child of a Veteran for the purpose of establishing basic legal entitlement to Department of Veterans Affairs (VA) death benefits. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant claims that his father had active duty service with the USAF in the Philippines during World War II. [The service has not been verified.] The appellant's father died in February 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an administrative denial by the VA Regional Office (RO) in Manila, the Republic of the Philippines. The initial threshold matter here, and in any claim for VA benefits, is whether the appellant is a proper claimant for the benefit sought. The claim is characterized accordingly. FINDINGS OF FACT 1. The appellant was born in July 1940 and was 68 years old when he applied for VA death benefits in August 2008; he is the son of the alleged Veteran (based on whose alleged service benefits are sought). 2. The evidence of record does not show, nor is it alleged, that the appellant was permanently incapable of self-support by reason of physical or mental defect before he attained the age of 18. 3. The appellant may not be recognized as a surviving child of a Veteran for the purpose of establishing basic entitlement to VA death benefits. CONCLUSION OF LAW The appellant is not a child of a Veteran, and does not meet the criteria for establishing basic entitlement to VA death benefits. 38 U.S.C.A. §§ 101(4), (14) (West 2002); 38 C.F.R. §§ 3.5, 3.57, 3.356 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a). The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The facts in this matter are not in dispute. Resolution of the appeal is dependent on application of governing law and regulation to the facts shown. Notably, the appellant is represented by a service organization that should be well aware of the governing legal criteria. Further, the RO advised the appellant of the criteria he must satisfy to be considered a surviving dependent child so as to establish basic eligibility to VA death benefits in the February 2009 statement of the case (SOC). The matter was readjudicated (by a September 2009 supplemental SOC) after he had opportunity to respond. Because no reasonable possibility exists that further notice or assistance would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Welsh v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Factual Background, Law and Analysis The appellant seeks VA death benefits as a child of a deceased Veteran. Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. VA periodic death benefits (dependency and indemnity compensation (DIC) and death pension) are payable to a child of a veteran. 38 U.S.C.A. §§ 101(14), 1313, 1542; 38 C.F.R. § 3.5. To establish status as a surviving child of a veteran, a child must be unmarried and must either be under the age of 18 and have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. §§ 3.57(a)(1)(3), 3.356 (2012). 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. 38 U.S.C.A. § 5107 (West 2002); See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The alleged Veteran, based on whose service the benefit at issue is sought, died in February 1971. His recognized service has not been verified, however, verification of such service is not necessary as the matter of recognized service is moot; the appellant has not established that he is a proper claimant for the benefit sought. In August 2008, the appellant filed a claim for VA death benefits. On his application form, he indicated that he was born in July 1940. Therefore, he was 68 years old when he applied for VA benefits, and exceeded the maximum allowable age for recognition as a child of a Veteran, if unmarried and pursuing a course of instruction. The only alternate way of establishing child of a Veteran status for VA benefits purposes under governing law is by establishing status as a "helpless child," i.e., a person shown to be incapable of self-support prior to the age of 18. It is neither shown, nor alleged, that, prior to turning 18 years old in July 1958, the appellant was permanently incapable of self-support. Accordingly, the Board must find that the appellant is not a surviving child of a Veteran for VA death benefits-eligibility purposes, and not a proper claimant for the benefit sought. The appeal in this matter must be denied because the claim lacks legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also 38 U.S.C.A. §§ 101(4), (14); 38 C.F.R. §§ 3.5, 3.57, 3.356. ORDER The appeal to establish surviving child of a Veteran status, and the appellant's basic eligibility for VA death benefits, is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs