Citation Nr: 1319908 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 11-17 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to VA death benefits as the child of the Veteran. ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran had active service from March 1969 to March 1971 and died in December 1992. The appellant asserts that she is the Veteran's daughter. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision by the Pension Management Center of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA). The RO in Reno, Nevada, currently has jurisdiction of the claims file. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT As the appellant was born in November 1978, she was 31 years of age at the time of her June 2009 claim of entitlement to VA death benefits. CONCLUSION OF LAW Basic eligibility for VA death benefits is not established. 38 U.S.C.A. §§ 101(4), 1310, 1313, 1542, 5121 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.57, 3.315(a), 3.356 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011). The Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim. See Holliday v. Principi, 14 Vet. App. 282 -83 (2001). For reasons expressed immediately below, the Board finds that resolution of the issue on appeal is based on the operation of law and that the VCAA is generally not applicable. In Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001) (en banc), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive in the matter. The Board finds that such is the case as to the issue here on appeal. As explained below, there is no dispute as to the facts. This appeal is being denied due to the appellant's failure to meet the basic eligibility requirements for the benefit sought. Therefore, based on the Court's decision in Manning, the Board concludes that the appellant's appeal is not subject to the provisions of the VCAA. Basic Eligibility Where a Veteran dies after December 31, 1956, from a service-connected or compensable disability, VA shall pay Dependency and Indemnity Compensation (DIC) to the Veteran's surviving spouse, children, and parents. 38 U.S.C.A. § 1310(a). A surviving child is entitled to DIC where there is no surviving spouse. 38 U.S.C.A. § 1313(b). Pension is payable to the Veteran of a period of war. 38 U.S.C.A. § 1542. In certain circumstances benefits which were due but unpaid at the time of a Veteran's death may be paid to the Veteran's children in equal shares. 38 U.S.C.A. § 5121. The term "child" for purposes of Title 38 of the United States Code, for the purposes of all of the VA death benefits claimed by the appellant, is specifically defined. For purposes of determining eligibility as a claimant under Title 38, a child must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between ages 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.315(a), 3.356. For helpless child status, it must be shown that the child became permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. Rating determinations will be made solely on the basis of whether the child is permanently incapable of self-support through her or her own efforts by reason of physical or mental defects. The question of permanent incapacity for self-support is one of fact for determination by the rating agency on competent evidence of record in the individual case. Rating criteria applicable to disabled Veterans are not controlling. See 38 C.F.R. 3.356. In her August 2011 Substantive Appeal, the appellant argued that her claimed father, the Veteran, was discharged from service under other than dishonorable condition and served 90 days or more of active duty with at least one day during a period of war. She asserted that she was unmarried and under the age of 23 at the time of the Veteran's death in December 1992. In essence, it appears that she argues that she did not know that the Veteran was her father until deoxyribonucleic acid (DNA) results indicated as much in May 2007 and that such should be considered good cause for her failure to file a claim for VA death benefits when she was 23 or younger. She reported that from 1978 until the date she turned 23, her countable income and net worth were below the established thresholds. In support of her claim, she submitted information related to her current and past financial difficulties, school attendance, DNA results indicating that the appellant is related to two claimed paternal aunts, her June 2009 claim for benefits from the Social Security Administration (SSA), and legal documents indicating that the Arkansas State Highway and Transportation Authority, in a July 2011 letter, offered a financial settlement for property to the appellant as an heir of the Veteran, and in turn, heir to the Veteran's mother's estate. The appellant submitted copies of VA regulations pertaining to new and material evidence and internet information about the statute of limitations. As discussed above, however, under the applicable criteria, the appellant must be unmarried and must be either 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)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.315(a), 3.356. The appellant asserts that she is unmarried; however, she was born in November 1978 and was, at the time of her June 2009 claim for VA death benefits, 31 years of age. While the appellant asserts that she was under the age of 23, and has submitted school attendance documents related to past educational pursuits; at the time of the Veteran's death, she did not file a claim for VA death benefits at that time. While the appellant asserts that she is incapable of self-support, and has submitted documents related to past and current financial difficulties and the receipt of public assistance; there is no evidence that she became permanently incapable of self-support by reason of physical or mental defect at the date of attaining the age of 18 years. The Board is sympathetic to the appellant's assertion that she did not know that she was the child of the Veteran until well after his death, and well after she may have met the eligibility requirements for VA death benefits based on the Veteran's service. However, the Board is bound by the cited regulations pertaining to determining eligibility as a claimant under Title 38 and must analyze the appellant's eligibility for such benefits based on her claim as filed in June 2009. The regulations do not provide for consideration of claims for VA death benefits based on claimed parentage years after the Veteran's death when the claimant is beyond the ages specifically prescribed by the regulations. The VA regulations cited by the appellant refer to new and material evidence sufficient to reopen a previously denied claim. There is no previously denied VA decision of record in the present appeal. To the extent that any claim for benefits from the SSA was made years prior, such does not alter the date of the appellant's VA claim. There is no basis to treat her claim as filed with VA nearer in time to the Veteran's death. Simply put, the appellant may have met the eligibility requirements in the past; however, unfortunately, she did not file a claim at that time, even for reasons beyond her control. Based on the forgoing, specifically, the appellant's age at the time her claim; she does not meet the basic eligibility requirements as a child, eligible for VA death benefits, of the Veteran in this case. Thus, basic eligibility for VA death benefits is not established. As is the case here, where the law, and not the facts, is dispositive, the claim is denied for lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to VA death benefits as the child of the Veteran is denied ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs