Citation Nr: 18149765
Decision Date: 11/13/18	Archive Date: 11/13/18

DOCKET NO. 17-19 047
DATE:	November 13, 2018
ORDER
Recognition of the appellant as an eligible dependent for VA Dependency and Indemnity Compensation (DIC) benefit purposes is granted, subject to the applicable law governing the award of monetary benefits.
FINDINGS OF FACT
1.  The appellant (TV) was born June [redacted], 1990.
2.  A claim for DIC benefits was filed on behalf of TV on November 5, 2004.
CONCLUSION OF LAW
The appellant has met the criteria to be deemed a child for purposes of obtaining VA benefits.  38 U.S.C. §§ 101(4)(A), 1310, 1313 (2012); 38 C.F.R. §§ 3.57, 3.356 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from April 1972 to May 1975.  He died in September 2004.  TV is the Veteran’s son.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 determination issued by the Department of Veterans Affairs (VA) Regional Office (RO).  This case was previously before the Board in June 2018.
Applicable Law
For purposes of establishing entitlement to certain VA benefits, an individual may be recognized as a “child” of a Veteran.  The term “child” is defined, for purposes of VA benefits, 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 or was a member of the veteran’s household at the time of the veteran’s death, or an illegitimate child; and who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self support; or (iii) 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. § 101 (4)(A) (West 2014); 38 C.F.R. § 3.57 (2018).
The appropriate date on which to assess whether a person qualifies as a “child” for the purpose of determining eligibility for DIC benefits is governed by 38 C.F.R. § 3.400(c)(4) and depends on when the claim was filed.  Lynch v. Shulkin, 2018 U.S. App. Vet. Claims LEXIS 1403 (U.S. App. Vet. Cl., Oct. 23, 2018).  For claims filed within 1 year after the date entitlement arose (i.e., the date of the Veteran's death), whether a claimant is a "child” should be assessed on the date entitlement arose.  For claims filed more than 1 year after the date entitlement arose, whether a claimant is a "child” should be assessed on the date the claim was received.
Background
TV was born June [redacted], 1990.  The Veteran, TV's father, died in September 2004.  On November 5, 2004, a claim for DIC benefits was filed on behalf of TV.
Analysis
Applying the holding from Lynch to the facts of this case, as a claim was filed in November 2004 on the appellants’ behalf within 1 year of the Veteran’s September 2004 death, the date of death is the appropriate date upon which to assess whether the appellant was a "child," regardless of TV's present age.  As TV was 14 at the time of the Veteran's death, the appellant has met the criteria to be deemed a child for purposes of obtaining VA benefits.  The appeal is granted to this extent only.
 
K. MILLIKAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	David Nelson