Citation Nr: 1312879 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 09-37 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to non-service-connected death pension benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from January 1953 to December 1954. He died in September 2007. The Appellant is his surviving adult child. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied, in pertinent part, the Appellant's claim for non-service-connected death pension benefits. FINDINGS OF FACT 1. A review of the Veteran's claims file shows that he died in September 2007. 2. At the time of the Veteran's death, service connection was not in effect for any disabilities. 3. A review of the Veteran's claims file shows that the Appellant was born in 1968 and is the Veteran's biological child. 4. The Appellant is not entitled to receive non-service-connected death pension benefits based on her age. CONCLUSION OF LAW The criteria for entitlement to VA non-service-connected death pension benefits have not been met. 38 U.S.C.A. §§ 101(4)(A), 1521, 1541, 1542 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.3, 3.23, 3.24, 3.57 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Board acknowledges that, although the Appellant was not provided with pre-adjudication VCAA notice concerning her claim, the lack of notice was not prejudicial in this case. Here, the fact that the Appellant is the surviving child of the deceased Veteran is not in dispute. This appeal turns instead on whether the Appellant can be considered the Veteran's dependent child for purposes of eligibility for non-service-connected death pension benefits. The relevant law and regulations provide that entitlement to non-service-connected death pension benefits can be established for a Veteran's dependent child where the child is under the age of 18 or, if between the age of 18 and 23, is pursuing a course of instruction at an approved educational institution. See 38 U.S.C.A. §§ 101(4)(A), 1521, 1542 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.23, 3.24, 3.57 (2012). According to a review of the Appellant's birth certificate, a copy of which is included in the Veteran's claims file, she was born in 1968 to the Veteran and his wife. The Appellant would have reached the age of 18 in 1986, or 21 years before she filed her claim. She also is not between the age of 18 and 23 and pursuing a course of instruction at an approved educational institution. Thus, although the Appellant is the Veteran's biological child, she is not entitled to non-service-connected death pension benefits as a matter of law. See Smith v. Gober, 14 App. 227, 232-32 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii); 38 C.F.R. § 3.159(d)(3). Neither the Appellant nor her service representative has asserted that the lack of pre-adjudication VCAA notice was prejudicial. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board observes that notice as to what is required to substantiate a claim of entitlement to non-service-connected death pension benefits, including VCAA notice, was provided to the Appellant and her service representative in the July 2009 Statement of the Case. Her claim was readjudicated in July 2009. Accordingly, the Board concludes that, because no reasonable possibility exists that providing the Appellant with further assistance will aid in substantiating her claim, the lack of pre-adjudication VCAA notice was not prejudicial. See also Sanders v. Nicholson, 487 F.3d 881 (2007), rev'd sub nom. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). And a remand to provide the Appellant with additional VCAA notice would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). In this case, it is the law, and not the facts, that are dispositive of the appeal. Thus, the Board finds that the general duties to notify and assist claimants under the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The Court has held that enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because the requirement that a dependent child is under the age of 18 years or, if between age 18 and 23, is pursuing a course of instruction at an approved educational institution for purposes of entitlement to non-service-connected death pension benefits is outlined in statute and regulation, the Board's review is limited to interpreting the pertinent law and regulations. See Smith, 14 Vet. App. 227, 231-32 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); see also 38 C.F.R. §§ 3.159(b)(3)(ii), (d)(3). Given the foregoing, the Board will proceed to adjudicate the Appellant's claim on the merits. Non-Service-Connected Death Pension Benefits The Appellant contends that she is entitled to non-service-connected death pension benefits as the Veteran's surviving child. She specifically contends that she is entitled to non-service-connected death pension benefits because she lived with the Veteran and cared for him in his final years. Law and Regulations Applicable law and regulations provide that VA "shall pay to each child (1) who is the child of a deceased Veteran of a period of war who met the service requirements prescribed in section 1521(j) of this title, or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability, and (2) who is not in the custody of a surviving spouse eligible for pension under section 1541 of this title, pension at the annual rate of $600, as increased from time to time under section 5312 of this title and reduced by the amount of such child's annual income." 38 U.S.C.A. § 1542. Under 38 U.S.C.A. § 1521(j), "[a] Veteran meets the service requirements of this section if such Veteran served in the active military, naval or air service" for a period of at least 90 days. See 38 U.S.C.A. § 1521(j). As relevant to the Appellant's claim, the term "child" is defined for VA purposes as an unmarried person who is under the age of 18, who became permanently incapable of self-support before reaching age 18, or, if between the age of 18 and 23, is pursuing a course of instruction at an approved educational institution. See 38 U.S.C.A. § 101(4)(A). As also relevant to this claim, the term "Korean Conflict" means active service between June 27, 1950, and January 31, 1955. See 38 U.S.C.A. § 101(9). Finally, the term "period of war" includes the Korean Conflict. See 38 U.S.C.A. § 101(11). Factual Background A review of the claims file shows that the Appellant was born on October [redacted], 1968. Her parents are listed on her birth certificate, a copy of which is included in the Veteran's claims file, as the Veteran and his wife. A review of the Veteran's death certificate, a copy of which is included in the claims file, shows that he died on September [redacted], 2007. The Veteran's daughter is listed as the "Informant" on the death certificate. In statements on her December 2007 Notice of Disagreement, the Appellant asserted that she had lived with her father prior to his death "and he has been the main support I had even when married." In statements on her September 2009 VA Form 9 (substantive appeal), the Appellant asserted that she had lived with her parents until her mother died and "then I had to care for my father for many years [until] his death...I have not been able to hold a job because I was always my father's caregiver." She also stated that she had been married briefly to her husband until he died. Analysis The Board finds that the preponderance of the evidence is against the Appellant's claim of entitlement to non-service-connected death pension benefits. The Appellant has contended that, because she is the Veteran's surviving child and because she lived with and cared for him in his final years, she is entitled to non-service-connected death pension benefits. As noted above, the Veteran had active service between January 1953 and December 1954. This is considered a period of war and is well in excess of the minimum active service requirement found in 38 U.S.C.A. § 1521(j). Thus, although service connection was not in effect for any disabilities at the time of his death, the Veteran met the service requirements prior to his death necessary to establish eligibility for non-service-connected death pension benefits after his death. See 38 U.S.C.A. §§ 1521(j), 1542. It also is not disputed that the Appellant is the Veteran's biological child. Given the Veteran's active service, and given her relationship to the Veteran, the Appellant would have been entitled to non-service-connected death pension benefits if she had been under the age of 18 or if she had been between age 18 and 23 and was pursuing a course of instruction at an approved educational institution at the time that she filed her claim. See 38 U.S.C.A. § 101(4)(A). Although it is undisputed that the Appellant is the Veteran's biological child, she is not considered a "child" for purposes of establishing eligibility for non-service-connected death pension benefits. See 38 U.S.C.A. § 101(4)(A). Unfortunately, as noted above, the Appellant reached the age of 18 in 1986, or 21 years before she filed her claim of entitlement to non-service-connected death pension benefits in 2007. The Appellant also was not between the age of 18 and 23 and pursuing a course of instruction at an approved educational institution at the time that she filed her claim in 2007. In other words, as the RO noted in the July 2009 Statement of the Case, the Appellant was well over the age limit to establish her eligibility for non-service-connected death pension benefits claim when she filed her claim in 2007. Id. In summary, the Board finds that the Appellant's claim of entitlement to non-service-connected death pension benefits must be denied as a matter of law. See Sabonis, 6 Vet. App. at 426. ORDER Entitlement to non-service-connected death pension benefits is denied ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs