Citation Nr: 1308626 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-43 189 ) 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 based on alleged status as the child of the Veteran. WITNESSES AT HEARING ON APPEAL The appellant, [redacted], and [redacted] ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from June 1943 to January 1946. He passed away in July 1985. The appellant seeks benefits as his surviving daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO). FINDINGS OF FACT 1. The appellant was born in June 1946. 2. The evidence of record does not establish that the appellant became permanently incapable of self-support before reaching the age of 18 years. 3. The appellant may not be recognized as a child for the purpose of entitlement to Department of Veterans Affairs death benefits. CONCLUSION OF LAW The appellant is not eligible for VA death benefits. 38 U.S.C.A. §§ 101(2), 101(24), 107, 1521, 1542 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.7, 3.40, 3.57, 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered whether the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002), is applicable to this claim. The Board finds that, because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Accordingly, there is no further need to discuss the VCAA duties. The Board finds no prejudice toward the appellant in proceeding with the adjudication of her claim. The appellant is seeking entitlement to Department of Veterans Affairs death benefits as the child of a Veteran. VA law provides entitlement to dependency and indemnity compensation (DIC) to a veteran's surviving spouse, child, or parent because of a service-connected death. 38 U.S.C.A. § 101(14); 38 C.F.R. § 3.5 (2012). For purposes of determining eligibility as a claimant under Title 38 of the United States Code, a child must be unmarried and must either be under the age of 18, 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), 3.356 (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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In her May 2009 claim, the appellant identified herself as the Veteran's daughter, and requested compensation due to having been "deprived of the care of [her] American father due to culture and distance." She explained that her father was an American soldier. The evidence of record demonstrates that the Veteran married J.L. in March 1944. A December 1994 affidavit from G.C. reports that he served with the Veteran in the Philippines, and that the Veteran lived with J.L. G.C. noted that he executed the affidavit to establish that the appellant is the daughter of the Veteran. A January 2009 statement from T.S.A. and A.B.P. states that, after marrying J.L., the Veteran went home to the United States, leaving J.L. pregnant. J.L. later gave birth to the appellant. In a January 2010 statement and a March 2010 VA Form 21-534, the appellant reported that she was born in June 1946. At the time that she filed her claim for benefits in May 2009, she was 62 years old. It is not clear whether the appellant was married or pursuing a course of instruction when she filed her claim. Nonetheless, the Board finds that because the appellant was 62 years old when she filed her May 2009 application for benefits, she was older than the maximum allowable age of 23 years for purposes of satisfying the definition of "child" regardless of her marital status or if she was pursuing a course of instruction at that time. Moreover, the evidence does not show, and the appellant does not assert, that prior to turning 18 years old in June 1964, she was permanently incapable of self-support. The Board acknowledges the appellant's contention that she is entitled to Department of Veterans Affairs death benefits based on her father's military service and her status as a surviving child. However, due to her age when she filed her May 2009 application for benefits and the lack of evidence showing she was permanently incapable of self-support prior to turning 18 years old, the Board must find that the appellant is not a child for VA benefits-eligibility purposes, and thus does not meet the eligibility requirements for Department of Veterans Affairs death benefits. See 38 U.S.C.A. §§ 101(4), (14); 38 C.F.R. §§ 3.5, 3.57, 3.356. In a case such as this, where the law and not the evidence is dispositive, the claim must be denied because of the lack of legal entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to Department of Veterans Affairs death benefits is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs