Citation Nr: 1331191 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-12 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to recognition as a "child" of the Veteran for purposes of receiving Dependency and Indemnity Compensation (DIC) benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from November 1942 to June 1943. The Veteran died in August 2008. The appellant is the Veteran's daughter. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. In connection with this appeal, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2011 and accepted that hearing in lieu of an in-person hearing before a Veterans Law Judge. A transcript of the hearing is associated with the claims file. FINDING OF FACT The appellant was born in August 1959 and attained age 18 in August 1977, but she did not become permanently incapable of self-support prior to attaining 18 years of age, and she is not between the ages of 18 years and 23 years and pursuing a course of instruction at an approved educational institution. CONCLUSION OF LAW The criteria for recognition of the appellant as the "child" of the Veteran for purposes of receiving DIC benefits have not been met. 38 U.S.C.A. §§ 101(4), 1310 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.5, 3.57(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the claim on appeal, the pertinent facts are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim and no further action is required to comply with the notice and development requirements. Manning v. Principi, 16 Vet. App. 534 (2002); VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004). When a Veteran dies after 1956 from a service-connected disability, DIC shall be paid to the Veteran's surviving spouse, child, or parent. 38 U.S.C.A. § 1310(a) (West 2002); 38 C.F.R. § 3.5 (2012). A "child," is defined for the purposes of establishing dependency status as an unmarried person who is a legitimate child; a child legally adopted before the age of 18 years; a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran's household at the time of the Veteran's death; or an illegitimate child. In addition, the child must be someone who: (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) 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) (West 2002); 38 C.F.R. § 3.57(a) (2012). Rating determinations regarding incapacity for self-support will be made solely on the basis of whether the child is permanently incapable of self-support through 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. 38 C.F.R. § 3.356(2). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record in a case before VA with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran died in August 2008. At the time of the Veteran's death, the appellant was 49 years old. The appellant asserts that she is entitled to DIC benefits as the child of the Veteran. A review of the record shows that the appellant has submitted evidence showing that up until approximately 2005, she was employed. At her July 2011 Board hearing, the appellant testified that she worked for approximately six years as a security officer and another three to four years after that on the cleaning staff at a stadium. She reported that she stopped working when she injured herself and that she had received workers compensation for her injury. After careful consideration, the Board finds that the appellant is not eligible to receive DIC benefits because she is not a "child" of the Veteran for these purposes. The Board notes that she is not under the age of 18, she is not between the ages of 18 years and 23 years and pursuing a course of instruction at an approved institution, and she did not become permanently incapable of self-support before reaching the age of 18 years. In fact, the appellant has not argued to the contrary. She has presented no evidence showing that she was permanently incapable of self support before reaching the age of 18. In fact, she has stated that she was employed after the age of 18. Therefore, the Board finds that as the pertinent facts are not in dispute and the law is dispositive, the claim must be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). In denying this claim, the Board acknowledges the Veteran's service as well as the unfortunate circumstances of the appellant's case. The Board notes that the appellant's arguments that she should be awarded DIC benefits as she cared for her father prior to his death essentially constitute a theory of equitable relief. Although the Board denies her claim as a matter of law as lacking legal merit, the Board is sympathetic to her claim. The Board, however, is without authority to grant the claim on an equitable basis and instead is constrained to follow the specific provisions of the law. 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436 (1998); Harvey v. Brown. 6 Vet. App. 416 (1994). ORDER Entitlement to recognition as a "child" of the Veteran for purposes of receiving DIC benefits is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs