Citation Nr: 1538933 Decision Date: 09/11/15 Archive Date: 09/24/15 DOCKET NO. 14-01 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether the appellant can be considered the surviving child of the Veteran for purposes of basic eligibility for VA death pension benefits and VA dependency and indemnity compensation benefits. 2. Entitlement to accrued benefits. ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The appellant is seeking recognition as the child of her father, who served with the Philippine Commonwealth Army from September 1941 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The appellant filed an original claim for VA death benefits in April 2012, at which time she was in advance of 23 years of age and married. 2. The Veteran died in 1979, and the appellant filed an original claim for accrued benefits in May 2012, which was greater than one year after the date of his death. CONCLUSIONS OF LAW 1. The criteria for recognition as the surviving child of the Veteran for purposes of basic eligibility for VA death pension benefits are not met. 38 U.S.C.A. § 1542 (West 2014); 38 C.F.R. §§ 3.3 , 3.24, 3.57, 3.314 (2014). 2. The threshold criteria for the award of accrued benefits are not met. 38 U.S.C.A. § 5121 (West 2014); 38 C.F.R. § 3.1000 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Certain VA death benefits, including death pension, dependency and indemnity compensation (DIC) benefits, and accrued benefits are payable to a veteran's surviving child. 38 U.S.C.A. §§ 1310 , 1542. A. DIC/Pension Applicable Law The term "child" of the veteran means 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 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). Discussion In this case, basic recognition for VA death benefits must be denied because the appellant does not meet the definition of a "child" as required for such eligibility. She filed an original claim in April 2012, at which time she was in advance of 23 years of age and already married. As such, she cannot qualify as a "child" of the Veteran, and the appeal must be denied. See 38 C.F.R. § 3.57(a). B. Accrued Benefits Applicable Law Periodic monetary benefits (other than insurance and servicemembers' indemnity) authorized under laws administered by the Department of Veterans Affairs, to which a payee was entitled at his or her 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 as follows: (1) Upon the death of a veteran to the living person first listed as follows: (i) His or her spouse; (ii) His or her children (in equal shares); (iii) His or her dependent parents (in equal shares) or the surviving parent. (2) Upon the death of a surviving spouse or remarried surviving spouse, to the veteran's children. (3) Upon the death of a child, to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation. (4) Upon the death of a child claiming benefits under chapter 18 of this title, to the surviving parents. (5) 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. (See §3.1002.) 38 C.F.R. § 3.1000(a). "Child" is as defined in §3.57 and includes an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age as well as an unmarried child over the age of 18 but not over 23 years of age, who was pursuing a course of instruction within the meaning of §3.57 at the time of the payee's death. 38 C.F.R. § 3.1000(d)(2). Application for accrued benefits must be filed within 1 year after the date of death. A claim for death pension, compensation, or dependency and indemnity compensation, by an apportionee, surviving spouse, child or parent is deemed to include claim for any accrued benefits. 38 C.F.R. § 3.1000(c). Discussion In this case, basic eligibility for accrued benefits must also be denied because the Veteran died in 1979, and the appellant filed an original claim in May 2012, which was greater than one year after the date of his death. See 38 C.F.R. § 3.1000(c). She does not otherwise appear to be a proper claimant because she is not his surviving child, and records submitted show that another family member bore the expense of last burial. See 38 C.F.R. § 3.1000(a). As such, this appeal must be denied. There are no material facts in dispute in this case. Accordingly, the Board must deny the appeal as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C.A. § 5107(b) are not for application. (CONTINUED ON NEXT PAGE) ORDER Basic eligibility for recognition as the surviving child of the Veteran for purposes of basic eligibility for VA death pension benefits and VA dependency and indemnity compensation benefits is denied. Entitlement to accrued benefits is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs