Citation Nr: 1326207 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 05-10 739A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant is entitled to dependency and indemnity compensation (DIC) as a child of the Veteran. ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had honorable service with the Merchant Marine from March 1942 to January 1945. The Veteran died in March 1988. The appellant has identified herself as the Veteran's daughter. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2004 decision letter issued by the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines (RO). In that letter, the RO denied the appellant's DIC claim due to a lack of evidence of qualifying service. The appellant perfected her appeal and the matter came before the Board in January 2007, where the claim was remanded for further development. The RO subsequently determined that the Veteran had qualifying service, but denied the claim for lack of a service connected disorder in a February 2008 supplemental statement of the case (SSOC). In January 2010 this matter was remanded by the Board because the appellant was a surviving child, not the surviving spouse, of the Veteran and as such the RO needed to issue proper notice regarding what was required to substantiate a claim as a child of the Veteran. In that regard, a Veterans Claims Assistance Act of 2000 (VCAA) notice letter was sent to the appellant in December 2011. The Board is satisfied that there has been substantial compliance with its remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the appellant attempted to designate the American Legion as an appointed representative by writing the service organization's title in the signature block for appointed representatives in her April 2005 VA Form 9. In May 2005 the RO sent a VA Form 21-22 to the appellant so that she could appoint the American Legion as her representative. This form was not returned. The RO also issued information to the appellant regarding service organizations in February 2007, August 2007, and December 2011. As the appellant received notice regarding assistance with her claim by a service organization, but never returned a VA Form 21-22, the Board finds that no representative has been appointed in this matter. The Board also notes that there is not a Virtual VA paperless claims file associated with the claims file. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. The appellant has not submitted evidence tending to show that she is unmarried and under the age of 18, that she became permanently incapable of self-support prior to the age of 18, or that she is under the age of 23 and pursuing a course of instruction at an approved educational institution. CONCLUSION OF LAW The appellant is not a child for purposes of obtaining DIC benefits. 38 U.S.C.A. §§ 101(4)(A), 1310, 1313 (West 2002); 38 C.F.R. § 3.57 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Law and Regulations Dependency and Indemnity Compensation (DIC) may be available to a surviving spouse, child or parent of a Veteran as a result of a service-connected death occurring after December 31, 1956 or for benefits of a Veteran who was rated totally disabled at the time of death. 38 U.S.C.A. §§ 101(14), 1318. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability that incurred in or was aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). For the purposes of entitlement to DIC benefits, the term "child" means an unmarried person who is a legitimate child, a legally adopted child, a stepchild who was a member of the Veteran's household at the time of death, or an illegitimate child (acknowledged by the Veteran either in writing or via court ordered child support) of the Veteran; and is under the age of 18 years; or before reaching the age of 18 years became permanently incapable of self-support; or after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4). II. Analysis The appellant claims that she is entitled to DIC benefits as a result of the death of her father, a Veteran. In order to obtain these benefits the evidence must show that her father was eligible for VA benefits, that she qualifies to receive the benefits, and that her father's death was service connected or that he was totally disabled at the time of his death. 38 U.S.C.A. §§ 101(4), 1310, 1318. After careful review of the record, the Board finds that the evidence tends to show that the appellant is not entitled to receive DIC benefits as a child of the Veteran. As previously stated, the Veteran does have qualifying service for purposes of establishing eligibility for VA benefits through his service with the Merchant Marine. However, review of the Veteran's claims file reveals that there is no evidence that the appellant is considered a child under VA law for purposes of receipt of DIC benefits or that the cause of the Veteran's death was service connected. In February 2004 the appellant submitted a claim for DIC benefits. She indicated that she was the Veteran's surviving spouse by marking said box on the claims form. However, in all subsequent correspondence to the RO she identified herself as the Veteran's daughter. After a remand by the Board to address this issue, the RO sent a letter to the appellant in December 2011, which contained appropriate notice regarding what was required of her to substantiate her claim as a child. She did not submit any additional documents or testimony in support of her claim. Upon its review, the Board will adjudicate the claim based on the evidence of record; because the appellant failed to submit any additional documents or information, the Board will consider only the evidence in the Veteran's claims file in reaching its decision. The claims file does not contain any proof that the appellant is a legitimate, legally adopted, illegitimate, or stepchild of the Veteran. The file also does not contain any information regarding the appellant's age. However, the Board notes that the Veteran died in 1988. Twenty-five years have passed since that time, therefore, it would appear that the appellant is likely over the age of 18 years. The file is also silent with regard to the appellant's marital status, whether she is attending an approved educational institute, and whether she has the capacity to support herself. As there is no evidence before the Board which tends to prove that the appellant is eligible to receive DIC benefits as a "child" under the law, the appellant's claim is denied. The Board also notes that there is no evidence in the claims file that the Veteran was service connected for any disorder at the time of his death. The appellant similarly failed to submit any evidence showing that her father incurred a disorder during service and was the primary or contributory cause of death as requested by the RO. III. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court held that proper VCAA notice for DIC claims must also include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. In this case, the VCAA duty to notify was satisfied by way of the December 2011 letter sent to the appellant that fully addressed all notice elements. (The Board also notes that notice was given to the appellant regarding assistance from a service organization in letters dated March 2004, January 2005, May 2005, February 2007, August 2007, and December 2011.) VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records, and also providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the RO obtained evidence with regard to the Veteran's military service. Service treatment records and/or other medical records were not obtained. However, the appellant has not proven that she is a "child" under VA law and therefore is not entitled to any such benefits. The Veteran's death certificate indicates that his spouse was deceased at the time of his death. As there are no legal beneficiaries for any potential DIC benefits of record, any error by the RO in failing to obtain service treatment or VA records is harmless. Additionally, the appellant has not submitted any medical records in this matter despite the RO's request. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appellant is not entitled to dependency and indemnity compensation (DIC) as a child of the Veteran. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs