Citation Nr: 1341963 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 10-14 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to accrued benefits based on the death of the Veteran. WITNESSES AT HEARING ON APPEAL Appellant and G.S. ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to November 1980 and from April 1983 to April 1986. He died in June 2005 and the appellant is his daughter. This matter is before the Board of Veterans' Appeals (Board) on appeal of determinations by the Department of Veterans Affairs (VA) Regional Office (RO), in Chicago, Illinois. In May 2012, the appellant testified by videoconference hearing before the undersigned Veterans Law Judge. The transcript of the hearing is of record. FINDINGS OF FACT 1. A May 2005 rating decision awarded the Veteran nonservice connected pension benefits from May 16, 2005. 2. The Veteran died in June 2005; at the time of the Veteran's death, service connection was not in effect for any disabilities. 3. The appellant turned 23 years old on December [redacted], 2006. 4. An RO determination in February 2010 awarded the appellant the benefits due her as the Veteran's dependent child from July 2005 to December [redacted], 2006. CONCLUSION OF LAW The criteria for additional accrued benefits based on the death of the Veteran have not been met. 38 U.S.C.A. §§ 1542, 5112 (West 2002); 38 C.F.R. §§ 3.20, 3.500, 3.1000 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The VCAA does not apply in this case, because there is no reasonable possibility that any further assistance would aid the Appellant in substantiating the claim. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (The U.S. Court of Appeals for Veterans Claims held that the VCAA does not apply to a claim if there has been factual development and there is no reasonable possibility that any further assistance would aid the Appellant in substantiating the claim.). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that she is entitled to additional accrued benefits and/or death pension benefits based on her status as the Veteran's dependent at the time of his death. By way of background, the Veteran filed a claim for nonservice connected pension benefits on May 16, 2005. Under 38 U.S.C. § 1521, pension benefits are available to Veterans who served during a period of war and who are permanently and totally disabled from non-service-connected disability not the result of the Veteran's willful misconduct, with additional benefits payable for a child. The term "child" includes an unmarried person who, after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4) (A); 38 C.F.R. § 3.57(a); see also Burris v. Principi, 15 Vet. App. 348, 352 (2001). A May 2005 rating decision awarded the Veteran nonservice connected pension from May 16, 2005. At the time, the appellant, the Veteran's daughter, was 21 years old and enrolled in college. She has subsequently provided documentation demonstrating that she was pursuing a course of instruction at an approved educational institution through her 23rd birthday in 2006. The Veteran died on June [redacted], 2005. At the time of the Veteran's death, service connection was not in effect for any disabilities. His first disability check, dated July 1, 2005, was subsequently returned to VA by his family. Where a Veteran dies on or after October 1, 1982, as is the case here, the surviving spouse may be paid death pension or DIC benefits for the month in which the Veteran died at a rate equal to the amount of compensation or pension which would have been payable to the veteran for that month had death not occurred, unless the surviving spouse is otherwise entitled to a greater amount of death pension or DIC benefits. 38 C.F.R. § 3.20. Otherwise, no payment of death pension or DIC benefits may be made for the month in which the Veteran died. Id. In other words, only a surviving spouse is eligible for VA benefits payable for the month in which the Veteran died. As the appellant is not the Veteran's surviving spouse, she is not eligible by law for any portion of the amount of the check issued to the Veteran on July 1, 2005, notwithstanding the fact that she had been the Veteran's primary caretaker. See id. Applicable law and regulations provide that VA "shall pay to each child (1) who is the child of a deceased Veteran of a period of war who met the service requirements prescribed in section 1521(j) of this title, or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability, and (2) who is not in the custody of a surviving spouse eligible for pension under section 1541 of this title, pension at the annual rate of $600, as increased from time to time under section 5312 of this title and reduced by the amount of such child's annual income." 38 U.S.C.A. § 1542. Under 38 U.S.C.A. § 1521(j), "[a] Veteran meets the service requirements of this section if such Veteran served in the active military, naval or air service" for a period of at least 90 days. See 38 U.S.C.A. § 1521(j). As relevant to the appellant's claim, the term "child" is defined for VA purposes as an unmarried person who is under the age of 18, who became permanently incapable of self-support before reaching age 18, or, if between the ages of 18 and 23, is pursuing a course of instruction at an approved educational institution. See 38 U.S.C.A. § 101(4)(A). The Veteran's active service between January 23, 1974 and May 7, 1975 is considered during a period of war and is well in excess of the minimum active service requirement found in 38 U.S.C.A. § 1521(j). Thus, although service connection was not in effect for any disabilities at the time of his death, the Veteran met the service requirements prior to his death necessary to establish eligibility for non-service-connected death pension benefits after his death. See 38 U.S.C.A. §§ 1521(j), 1542. It also is not disputed that the appellant is the Veteran's biological child. Given the Veteran's active service, and given her relationship to the Veteran, the appellant was entitled to non-service-connected death pension benefits for the period when she was between age 18 and 23 and was pursuing a course of instruction at an approved educational institution. See 38 U.S.C.A. § 101(4)(A). The appellant turned 23 years old on December [redacted], 2006. An RO determination in February 2010 awarded the appellant the death pension benefits due her as the Veteran's dependent from July 2005 to December [redacted], 2006. Once she attained the age of 23 she was no longer considered a "child" of the Veteran for purposes of death pension benefits. As such, there are no additional benefits available. The Board notes that Chapter 35 of title 38 of the U.S. Code authorizes Dependents' Educational Assistance (DEA) to "eligible persons," including "children whose education would otherwise be impeded or interrupted by reason of the disability or death of a parent from a disease or injury incurred or aggravated in the Armed Forces." 38 U.S.C.A. § 3500. For purposes of DEA benefits under Chapter 35, the term "eligible person" means "a child of a person who, as a result of qualifying service, died of a service-connected disability or has a total disability permanent in nature resulting from a service-connected disability, or who died while a disability so evaluated was in existence." 38 U.S.C.A. § 3501(1)(A). As the Veteran did not have a service connected disability at the time of his death, the appellant does not qualify for benefits under Chapter 35. While the Board appreciates the appellant's arguments in support of her claim, and in particular her commendable care of the Veteran, the Board is bound by the law, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because such a result might be equitable. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994); see also Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (stating that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided by Congress") (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). Accordingly, the appellant's claim must be denied. As the law, and not the facts, determines the outcome of this claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The appeal is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs