Citation Nr: 1333177	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  09-28 572	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to Dependency and Indemnity Compensation (DIC).  

2. Entitlement to death pension benefits.

3. Entitlement to accrued benefits.

REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Nichols, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1968 to April 1970.  He died in March 1988.  The appellant claims as his surviving son.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 Department of Veterans Affairs (VA) Regional Office (RO) decision denying the claims for DIC, death pension, and accrued benefits.

The Board notes that the appellant, over the signature of his representative, submitted a withdrawal notice for his claims in August 2010.  However, it has since been clarified by the appellant by way of a September 2012 statement (and again by the representative in the October 2013 appellate brief) that the appellant has no desire to withdraw his claims.  Thus, the Board will proceed to consider the claims herein.

The Virtual VA electronic file contains the October 2013 appellate brief submitted by the Veteran's representative.


FINDINGS OF FACT

1. At the time of the appellant's claim in August 2008, the appellant was in his late-30s.  There is no evidence that he is a helpless child.

2. There were no VA claims pending at the time of the Veteran's death in March 1988.

3. An application for accrued benefits was not filed within one year of the date of the Veteran's death in March 1988.


CONCLUSIONS OF LAW

1. 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 (2013).

2. The appellant is not a child for purposes of obtaining death pension benefits.  38 U.S.C.A. §§ 101(4)(A), 1521, 1542 (West 2002); 38 C.F.R. §§ 3.3, 3.24, 3.57 (2013).

3. The basic eligibility criteria for payment of accrued benefits have not been met.  38 U.S.C.A. §§  5121 (West 2002); 38 C.F.R. §§ 3.57, 3.1000 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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, 5126 (West 2002); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2013).  Proper notice from VA must inform the claimant of any information and medical or lay 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.  38 C.F.R. § 3.159(b)(1) ; Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486  . 

In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and, (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected.  Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007).  While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. 

In addition, VA has a duty to assist a claimant in the development of a claim.  This duty includes assisting in the procurement of service treatment records, all pertinent pre-and post-service treatment records, and by obtaining a medical opinion when necessary.  38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. 

In a DIC case, VA must, as part of the duty to assist, "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1) ; Wood v. Peake, 520 F.3d 1345, 1348 (Fed.Cir.2008).  This requirement obligates VA to assess whether it is necessary to obtain a medical opinion in order to substantiate the claimant's claim.  Id.  VA is only excused from making reasonable efforts to provide assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim."  38 U.S.C. § 5103A(a)(2) .

In this case, as the appellant does not meet the basic eligibility requirements for VA benefits, see infra, obtaining a medical opinion would not substantiate his claims.  Thus, the Board finds that VA's duty to assist has been satisfied.

Law & Analysis

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. 

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); 38 C.F.R. § 3.57.

A child of a deceased wartime veteran may receive pension benefits.  38 U.S.C.A. § 1542; 38 C.F.R. § 3.24. 

Accrued benefits are periodic monetary benefits to which a payee was entitled at his death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person, be paid to an eligible applicant.  See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000 (emphasis added).

In descending order, accrued benefits are payable to the (1) Veteran's spouse, or (2) children (in equal shares), or (3) dependent parents (in equal shares).  Id.  If none of the above applies, then in all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial.  Id.  Again, a "child" for purposes of eligible applicants for accrued benefits purposes are the same as above.  See 38 U.S.C.A. § 101(4); 38 C.F.R. § 3.57.

Based on the evidence of record, the Board finds that the appellant does not meet the basic eligibility criteria for VA benefits in connection with his claims for DIC, death pension, and accrued benefits.  Hence, the appeal for these claims must be denied.

In the November 2008 report of contact, a Veteran Service Representative contacted the appellant for clarifying information with respect to his claim.  She explained to the appellant the qualifications dependent "child" by meaning of VA regulations, and the appellant responded that he would not meet the requirements of being a dependent child because he is over the age of 23 and he could not prove a helpless state before the age of 18.  In fact, at the time the Veteran's claim was received in August 2008, he was 36 years-old.  The appellant did not submit any additional evidence in support of his claims.  Thus, the Board finds that the appellant is not an eligible dependent of the Veteran as he fails to meet the criteria for "child" by VA regulations, and his claim for DIC and death pension must be denied at his juncture.  

The Board finds that for the claim for accrued benefits must also be denied because the evidence reflects that there was no claim pending at the time of the Veteran's death and no accrued claim was received within one year of his death in March 1988.  

As discussed above, the appellant is not a child of the Veteran for VA purposes.  Therefore, he does not meet the eligibility requirements for such benefits.  See 38 U.S.C.A. § 101(4); 38 C.F.R. § 3.57.

Accordingly, the appellant's claims for entitlement to VA benefits, including DIC, death pension, and accrued benefits, must be denied as a matter of law because he has not established basic eligibility for VA benefits.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

As basic eligibility for VA benefits is not established, entitlement to DIC is denied.

As basic eligibility for VA benefits is not established, entitlement to death pension is denied.

Entitlement to accrued benefits is denied.  



____________________________________________
H. N. SCHWARTZ 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs