Citation Nr: 1424367 Decision Date: 05/30/14 Archive Date: 06/06/14 DOCKET NO. 11-11 820A ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to recognition as a child of the Veteran for the purposes of receiving Dependency and Indemnity Compensation (DIC) benefits. ATTORNEY FOR THE BOARD K. Haddock, Counsel INTRODUCTION The Veteran had active military service from August 1948 to August 1952. The Veteran died in January 2001. The appellant is the Veteran's surviving child. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 administrative decision by the Department of Veterans Affairs (VA) Pension Center in Philadelphia, Pennsylvania. The issue of entitlement to burial benefits has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). FINDING OF FACT The appellant was born in November 1958, but he did not become permanently incapable of self-support prior to attaining 18 years of age, and he is not between the ages of 18 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 (2013). 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) (2013). 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). The Veteran died in January 2001. At the time of the Veteran's death, the appellant was 42 years old. The appellant asserts that he is entitled to DIC benefits as he is the Veteran's only survivor. A review of the record shows that the appellant maintained sporadic employment for many years (since at least 1986), but has been unemployed and in receipt of unemployment benefits for some time. In January 2010, the appellant lost entitlement to the unemployment benefits he had been receiving, but the record indicates that he now receives Social Security Administration (SSA) benefits. He has also reported that he is now incapable of self-support as a result of being blind. However, he has never indicated that he was incapable of self-support prior to reaching the age of 18, and there is no evidence of record which shows or suggests that he was incapable of self-support prior to reaching the age of 18. After careful consideration, the Board finds that the appellant is not eligible to receive DIC benefits because he is not a child of the Veteran for these purposes. The Board notes that he is not under the age of 18, he is not between the ages of 18 years and 23 years and pursuing a course of instruction at an approved institution, and he 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. He has presented no evidence showing that he was permanently incapable of self-support before reaching the age of 18 and the record shows that he 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 and the unfortunate circumstances of the appellant's case. The Board notes that the appellant's arguments essentially constitute a theory of equitable relief and while the Board denies his claim as lacking legal merit, the Board is sympathetic to his 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