Citation Nr: 1334048 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 12-28 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to accrued benefits based on alleged status as the child of the Veteran. ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran had beleaguered status from December 1941 until April 1942, was a prisoner of war from April 1942 until August 1942, had non-combat status from August 1942 until September 1942, was missing from September 1942 until October 1942, had non-combat status from November 1942 until June 1945, and had regular Philippine Army service from June 1945 until June 1946. The Veteran died in 1964. The initial appellant was the Veteran's spouse who died in June [redacted], 2012. Thereafter, the Veteran's son was purportedly substituted as the appellant in an August 2013 deferred rating decision by the Department of Veterans Affairs (VA) Regional Office (RO or Agency of Original Jurisdiction) in Manila, the Republic of the Philippines. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in 1964. 2. A September 2010 Board decision, which reopened service connection for the cause of the Veteran's death and denied the claim on the merits, was affirmed by the U.S. Court of Appeals for Veterans Claims (Court) in June 2012. 3. The appellant, who contends that he is the child of the Veteran for VA purposes, was born in December 1958 and attained the age of 18 in 1976. 4. Before attaining the age of eighteen years, the appellant did not become permanently incapable of self-support. CONCLUSIONS OF LAW 1. The September 2010 Board decision to deny the appeal for service connection for the cause of the Veteran's death, affirmed by the Court on June 11, 2012, is final. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. §§ 3.156 , 20.1100 (2013). 2. There is no legal entitlement to accrued benefits. 38 U.S.C.A. §§ 5121, 5121A (West 2002); 38 C.F.R. § 3.1000 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Court has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. See Sabonis v. Brown, 6 Vet. App. 426 (1994); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As the law is dispositive, the VCAA does not apply. Procedural History and Discussion In a September 2010 decision, the Board reopened the claim for service connection for the cause of the Veteran's death and denied the claim on the merits. At that time, the appellant was the Veteran's spouse, who died on June [redacted], 2012. The Veteran's son requested substitution as the appellant and was purportedly granted such status in an August 2013 deferred rating decision by the RO, notwithstanding his apparent ineligibility to become a substituted appellant because he had already reached the age of majority at the time of the Veteran's death. Following the September 2010 Board decision, the Veteran's spouse, the appellant at that time, filed a notice of appeal to the Court in November 2010. In a June 2012 memorandum decision, the Court affirmed the Board's September 2010 decision; therefore, the September 2010 Board decision to deny the appeal of service connection for the cause of the Veteran's death became final and binding on the appellant based on the evidence then of record. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 20.1100, 20.1104 (2013). Without acknowledgement of the Board's September 2010 decision and the Court's June 2012 affirmance, the RO erroneously accepted the appellant's November 2010 notice of appeal to the Court as a notice of disagreement (NOD) with the March 2005 rating decision denying service connection for the cause of the Veteran's death. The RO then issued a statement of the case in August 2012, which denied the appellant's claim due to lack of timeliness of appeal. Thereafter, the current appellant (the Veteran's son) filed what purported to be a substantive appeal (VA Form 9) in response to the August 2012 statement of the case. The Board finds that the August 2012 statement of the case was issued in error as the Veteran's wife's November 2010 submission was a notice of appeal to the Court (on the issue of service connection for the cause of the Veteran's death) and was not a NOD with the March 2005 rating decision, which denied service connection for the cause of the Veteran's death. Further, as the September 2010 Board decision was an appeal from the June 2005 NOD with the March 2005 rating decision denying service connection for the cause of the Veteran's death, more than one NOD with the same rating decision is procedurally impermissible. See 38 C.F.R. §§ 20.200, 20.201 (2013). There can be only one NOD. Multiple statements of disagreement are simply additional evidence or statements in support of claim or a duplicate notice of disagreement. Fenderson v. West, 12 Vet. App. 119, 130 (a statement by a veteran that was submitted after his NOD but prior to issuance of a SOC "has all the indicia of a duplicate NOD"; because SOC had not yet been issued, this statement could not constitute a substantive appeal); see also Hamilton v. Brown, 4 Vet. App. 528, 538 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir. 1994); Isenbart v. Brown, 7 Vet. App. 537 (1995) (holding that "there can be only one valid NOD as to a particular claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant"). For these reasons, the Board finds that there is no unadjudicated claim to reopen service connection for the cause of the Veteran's death. The September 2010 Board decision to deny the appeal for service connection for the cause of the Veteran's death, affirmed by the Court on June 11, 2012, is final See 38 C.F.R. §§ 3.156, 20.1100. Further, the Board finds that the RO's determination in the August 2013 deferred rating decision to grant appellate status (substitution) to the Veteran's son was legal error. Although the RO determined that the Veteran's son was being substituted to continue the Veteran's wife's claim for service connection for the cause of the Veteran's death, the Board finds that the October 2012 (VA Form 9) statement from the Veteran's son actually appears to request accrued benefits for VA nonservice-connected death pension benefits. Regardless of which claim the Veteran's son was attempting to pursue, the Board finds that there is no legal basis upon which to award the Veteran's son appellant status as an accrued benefits claimant, including by substitution; therefore, no legal basis to recognize him as a substituted or accrued benefits claimant or to award him VA benefits. The Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008), which created 38 U.S.C. § 5121A, provides that a person eligible for substitution, in a case of death of a claimant who dies on or after October 10, 2008, will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title." Under 38 U.S.C.A. § 5121(a), upon the death of a veteran's surviving spouse, periodic monetary benefits to which the individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death (referred to as "accrued benefits"), and due and unpaid, shall be paid to the veteran's "children." 38 U.S.C.A. § 5121(a)(3); 38 C.F.R. § 3.1000(a)(2). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C.A. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). The provisions of 38 C.F.R. § 3.1000 provide that, except as provided in 38 C.F.R. § 3.1001 and § 3.1008, in cases where death occurred on or after December 1, 1962, periodic monetary benefits authorized under laws administered by the Department of Veterans Affairs, 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 living persons in the order listed in 38 C.F.R. § 3.1000. Claims for accrued benefits must be filed within one year after the date of a veteran's death. 38 C.F.R. § 3.1000(c). Establishing that a person is a veteran's biological son or daughter is insufficient, in and of itself, to establish entitlement to accrued benefits under 38 U.S.C.A. § 5121(a)(3) and 38 C.F.R. § 3.1000(a)(2). Rather, it must also be shown that the claimant qualifies as a "child" for VA purposes. For accrued benefits, the term "child" is defined, in pertinent part, as: [a]n 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 or was a member of the veteran's household at the time of the veteran's death, or an illegitimate child; and (i) Who is under the age of 18 years; or (ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) Who, 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 educational institution approved by the Department of Veterans Affairs. 38 C.F.R. § 3.57(a). See also 38 U.S.C.A. § 101(4)(A); 38 C.F.R. § 3.1000(d)(2). The Board finds that the appellant is not entitled to accrued benefits pursuant to 38 C.F.R. § 3.1000 because he is not a qualifying child for VA purposes. As noted above, the term "child" for the purpose of VA benefits is defined as an unmarried child under the age of eighteen years; or before attaining the age of eighteen years became permanently incapable of self-support; and who is a child of a veteran at the time of the veteran's death. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.1000(d)(2) (2013). According to the June 1964 claim for dependency and indemnity compensation or death pension, filed by the Veteran's wife, the appellant (Veteran's son) was born in December 1958. Therefore, he is now 54 years old and attained the age of 18 in 1976. The evidence does not demonstrate, and the appellant has not contended, that before attaining the age of eighteen years, the appellant became permanently incapable of self-support. Thus, the Board finds that the Veteran's son is not a "child" for VA purposes, so is not an eligible accrued benefits claimant, including for purposes of substitution. Moreover, even assuming that the Veteran was a "child" for VA purposes, he would still not be entitled to accrued benefits for nonservice-connected death pension. Although in his October 2012 statement the Veteran's son contends that the Veteran was receiving a nominal pension at some point in the past, the Board finds that non-service-connected death pension is not available in this case as the Veteran served in the Philippine Commonwealth Army. Service in the Philippine Commonwealth Army is included as service for compensation, dependency and indemnity compensation, and burial allowance; however it does not include pension. See 38 C.F.R. § 3.40(c)(1) (2013). Therefore, the Veteran's type of service was not one that could have qualified a claimant for nonservice-connected death pension. As the law and not the evidence is dispositive on this issue, entitlement to nonservice connected death pension must be denied due to lack of legal merit. See Sabonis, 6 Vet. App. at 430 (1994). ORDER Entitlement to accrued benefits based on alleged status as the child of the Veteran is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs