Citation Nr: 18140013 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 13-12 846 DATE: October 2, 2018 ORDER The appeal is dismissed for lack of standing. FINDINGS OF FACT The Appellant does not have standing to pursue the claim of clear and unmistakable error in a December 1996 RO decision, on the basis of substitution and to include for purposes of accrued benefits, or the claims for service connection for the cause of the Veteran’s death, or for Dependency and Indemnity Compensation benefits under 38 U.S.C. § 1318. CONCLUSION OF LAW The Board may not exercise jurisdiction over these claims. 38 U.S.C. § 7104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1951 to June 1953. He died in June 2008. The appellant is his surviving son. The issues on appeal are: 1) entitlement to service connection for the cause of the Veteran’s death; 2) entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318; and 3) whether a December 1996 RO rating decision, which granted service connection for posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling, was based on clear and unmistakable (CUE), on the basis of substitution and to include for accrued benefits purposes. With regard to the claims for service connection for the cause of the Veteran’s death, and DIC, DIC is a monthly payment made by VA to a surviving spouse, child, or parent due to a service-connected death. See 38 U.S.C. §§ 101 (14), 1310, 1311; 38 C.F.R. § 3.5. For purposes of determining eligibility as a claimant under Title 38, there is a preliminary threshold issue as to whether the appellant qualifies as a “child” for purposes of entitlement to (DIC). With regard to the claim based on CUE, on the basis of substitution and to include for accrued benefits purposes, claims for VA benefits do not survive a claimant’s death. However, a qualified survivor may carry on a deceased veteran’s claim for benefits by submitting an application for accrued benefits within one year after the veteran’s death. 38 U.S.C. § 5121 (a), (c); 38 C.F.R. § 3.1000. Accrued benefits are “periodic monetary benefits... to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death.” Id. An accrued-benefits claim incorporates any prior final adjudication on claims brought by a veteran, because it derives from the veteran’s claims. For a claimant to prevail in his or her accrued benefits claim, the record must show the following: (1) the appellant has standing to file a claim for accrued benefits; (2) the Veteran had a claim pending at the time of his or her death; (3) the Veteran would have prevailed on his or her claim if he or she had not died; and (4) the claim for accrued benefits was filed within one year of the Veteran’s death. A child of a deceased veteran is eligible for substitution only if he or she satisfies the definition of 38 U.S.C. § 101(4)(A) “upon the death” of the veteran. Pursuant to 38 C.F.R. § 3.57, except as provided in paragraphs (a)(2) and (3) of this section, 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. See also 38 U.S.C. § 101 (4)(A), 104(a). The relevant administrative history shows the following: The Veteran died in June 2008. In November 2008, the RO denied claims filed by the Veteran’s surviving spouse (D.H.) for service connection for the cause of the Veteran’s death, and for DIC benefits under 38 U.S.C. § 1318. D.H. appealed the RO’s November 2008 decision. In September 2015, and July 2017, the Board remanded the claim; the July 2017 remand noted that a claim of CUE had been raised as to a final RO decision, dated in December 1996 (granting service connection for PTSD, evaluated as 30 percent disabling), and requested that the CUE claim be adjudicated. In July 2017, D.H. died. In November 2017, the RO determined that substitution by the Veteran’s surviving son (the Appellant) was appropriate. See 38 U.S.C. § 5121A; Breedlove v. Shinseki, 24 Vet. App. 7 (2010). In summary, the Appellant, who is the son of the Veteran and D.H., who are both deceased, is seeking DIC benefits under 38 U.S.C. § 1318 (based on a predicate claim of service connection for the cause of the Veteran’s death), and compensation based on a claim of CUE in a December 12996 RO decision, on the basis of substitution and to include for accrued benefits purposes. Given the fact that jurisdiction matters, and that it is not “harmless” error when VA, during the claims adjudication process, fails to address threshold jurisdictional issues, it follows that VA must first determine whether the Appellant is an eligible payee. The Board finds that the Appellant is not a proper claimant as to any of the claims in issue. As such, he has no legal standing to bring such a claim. In this regard, the Appellant’s birth certificate shows that he was born in December 1951. He is therefore 66 years of age, and he is not a “child” for VA purposes. See 38 U.S.C. § 101 (4); 38 C.F.R. § 3.57 (a). Hence, he has no legal entitlement to benefits as the surviving child of the Veteran and the Veteran’s (now deceased) widow (D.H.). The Board further notes that a DIC appellant may not raise a freestanding CUE claim. Haines v. West, 154 F. 3d 1298 at 1301-02 (Fed. Cir. 1998). While it is undisputed that the appellant is the child of the Veteran, he does not met the definition of “child” contained in VA regulations so as to be eligible to receive the award of the benefits he has sought. The appellant simply does not have standing for any of the claims in issue. That is, he has yet to show that he is “entitled to have (the Board) decide the merits of (his) dispute.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Because the appellant does not have standing to present the claims, the Board may not take further action. Even if the facts of this case were compelling, they would not justify disregarding the dictates of the governing procedural rule. As Justice Scalia pointed out when writing for the court of appeals, lack of jurisdiction means “an inability to act, not merely in unappealing cases, but in compelling cases as well.” National Black Media Coalition v. Federal Communications Comm’n, 760 F.2d 1297, 1300 (D.C. Cir. 1985). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.E., Counsel