Citation Nr: 18155084 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 15-05 079 DATE: December 4, 2018 ORDER Entitlement to VA death pension as the helpless child of the Veteran is denied. FINDING OF FACT Although the evidence establishes that the appellant was recognized as a helpless child during the Veteran’s lifetime, he has failed to provide sufficient medical and income evidence to establish entitlement to VA death pension. CONCLUSION OF LAW The criteria for entitlement to VA death pension benefits are not met. 38 U.S.C. § 1542; 38 C.F.R. §§ 3.3, 3.23, 3.57, 3.271, 3.272. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active military service from October 1963 to September 1965. He died in May 2008. The appellant is the Veteran’s son who was recognized by VA in October 2002 as a helpless child. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his mother appeared and testified at a hearing before the undersigned Veterans Law Judge in June 2018. At the hearing, it was agreed that the record would be held open for 60 days to permit the appellant to submit additional information and evidence. That time has passed, no additional evidence has been received from the appellant, and the appellant’s appeal has been forward for final appellate review. Entitlement to VA death pension as the helpless child of the Veteran The appellant is seeking VA death pension benefits based on his status as a helpless child of the Veteran. Improved death pension is a benefit payable to a veteran’s surviving child because of the veteran’s nonservice-connected death. Basic entitlement exists if (i) the veteran served for ninety days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse or child meets the net worth requirements and has an annual income not in excess of the maximum annual pension rate (MAPR). See 38 U.S.C. §§ 101(8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3(b)(4); 3.24. Generally, an individual is a child of a veteran if he or she is the biological or adopted child or stepchild of the veteran, and is an unmarried person who either: is (1) under the age of 18; (2) “shown to [have been] permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years;” or (3) 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. § 101 (4)(A)(ii); 38 C.F.R. §§ 3.57, 3.356; Dobson v. Brown, 4 Vet. App. 443, 445 (1993). The issue is one of fact premised on competent evidence in the individual case. Bledsoe v. Derwinski, 1 Vet. App. 32, 33 (1990). During his lifetime, the Veteran sought and obtained recognition of helpless child status for his son, whom is the appellant is the present appeal. See October 2002 rating decision. Furthermore, while he was alive, the Veteran was not service-connected for any disabilities but was in receipt of non-service-connected disability pension benefits from September 1989, and special monthly pension based upon the need for aid and attendance from September 2000. He was paid a dependency allowance for his son based on his helpless child status. The Veteran died in May 2008. In January 2009, the appellant filed his original claim for Dependency and Indemnity Compensation (DIC), accrued benefits and death pension benefits, which claims were initially denied in a June 2009 notification letter. The Veteran submitted additional evidence and argument thereafter, and his claims were readjudicated and denied in a July 2010 rating decision and notification letter. Specific to the issue presently on appeal, the RO denied the appellant’s claim for death pension in these decisions because he failed to provide information requested in letters sent to him in April 2009 and June 2010. The next communication from the appellant was received in May 2012 and is a single page (page one) of VA Form, 21-0519C-1, Improved Pension Eligibility Verification Report (Child or Children) (hereafter “EVR”). In January 2013, the RO sent the appellant a letter advising him it had received his claim for VA death pension but additional evidence was need from him before it could proceed. It provided a detailed list of information and evidence that the appellant was requested to return, which information and evidence was related to establishing his claim as a helpless child. In addition, this letter advised him that the back page of the EVR he filed was missing and requested he complete and return a new one. He was further advised of the need to submit this information and evidence within 30 days of this letter. The Veteran did not reply, and the RO notified him by letter in March 2013 that his claim for VA death pension was denied for his failure to provide the requested information. However, he was advised he had until January 2014 to submit this evidence and VA would continue processing his original claim. Instead, in June 2013, the appellant disagreed with the denial and submitted medical evidence from 2010 relating to his medical condition that is the basis of his helpless child claim. In a January 2015 Statement of the Case, the RO continued the denial of his claim because the appellant continued to fail to provide the necessary documentation requested to support it. The RO found the medical evidence provided, although confirming a diagnosis, was not sufficient to show the current severity of the appellant’s disability since it was from 2010. It was further noted that the appellant still has not reported his complete income and net worth information and the evidence of record shows he is continuing his education. He was advised that, if he reapplies for benefits, further information as to his income, net worth, education, and current medical condition would be required as all are factors used in determining entitlement to VA death pension. The Veteran perfected his appeal by filing a VA Form 9 on which he merely stated that he was on the Veteran’s income when he was living as a helpless child because he has been disabled since birth and that he is experiencing financial hardship due to increased expenses and needs help right now. He stated that he sent the income information back in January 2013. He reported that he wants to continue his education further but needs help with transportation, finances and supplies. However, the appellant submitted no additional evidence along with his statement. The Veteran and his mother appeared and testified at a Board hearing before the undersigned Veterans Law Judge in June 2018. The Veterans Law Judge explained in detail to the appellant what was necessary to establish entitlement to his claim and that his claim had been denied by the RO to date because he had failed to submit the documentation requested by the RO in the January 2013 letter. The appellant testified that he sent in income and medical information back in 2009, but the Veterans Law Judge explained to him that this information what too old and not relevant to the present claim, and that VA needs to know what his status was in 2013 and that is the information he needs to provide. She very strongly advised the appellant to provide the information the RO requests even if he thinks he already submitted it. After offering three times to hold the record open for 60 days so that the appellant could submit additional information and evidence after the hearing, he finally agreed. However, it has been five months since the hearing and no additional information or evidence has been received from the appellant. Consequently, to date, VA has not received any information or evidence to substantiate the appellant’s claim for entitlement to VA death pension as the helpless child of the Veteran as the appellant has failed to comply with VA’s requests for such information and evidence. It is the responsibility of claimants to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). The duty to assist is a two-way street. If a claimant wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board acknowledges that the appellant was recognized as a helpless child back in 2002 during the Veteran’s lifetime. However, the appellant has been advised multiple times that, in order to be entitled to VA death pension, additional information and evidence is required. Specifically, he had been advised that VA death pension, the benefit he is now attempting to obtain, is a need-based program and is dependent on his income and net worth. Therefore, he needs to provide correct income and net worth information to VA. He has been advised multiple times that the EVR he submitted in May 2012 was only one page and, thus, not a completed form so he needed to submit a fully completed form. To date, he has not done so. Moreover, he was advised that he needed to submit evidence to establish his current medical status regarding his disability to establish his continuing helpless child status. Although the January 2013 letter sent may have requested information and evidence more in line with establishing helpless child status for an initial time, the Statement of the Case makes it clear that the questions asked are still viable to the current claim as the whether he is entitled to continued helpless child status must be determined. Although the appellant stated on his VA Form 9 that he submitted income information in 2013, unfortunately, there is no record of such a submission in his claims file. The only evidence received from the appellant was the 2010 medical report received with his Notice of Disagreement. The Board finds, as did the RO, that this evidence is unfortunately too remote to substantiate the appellant’s current severity of his disability. Moreover, even considering the report, the Board finds it is too vague to support the appellant’s claim as it does not at all refer to how the appellant’s disability impacts his functioning, especially his ability to be self-supportive. As the RO stated, it merely confirms a diagnosis of neurofibroma and that the appellant continues to seek treatment for it. The appellant has received letters advising him what to submit. The Statement of the Case specifically advised him what was deficient with his claim and what he needed to submit in the future to establish his entitlement for death pension. Furthermore, at the Board hearing in June 2018, the Veterans Law Judge clearly advised the appellant multiple times what information and evidence was needed to support his claim and stressed the importance that he needed to submit this information to VA. Thus, the appellant has been given adequate notice of what is necessary to substantiate his claim and the deficiencies in the evidence of his claim. The Board does not believe further notice to the appellant is necessary or would result in a favorable response. In conclusion, the appellant’s claim for VA death pension must be denied as there is a lack of evidence to establish entitlement to the benefit sought. Although the Veteran has the requisite war time service and the appellant was recognized as a helpless child during his lifetime, the appellant’s own entitlement to VA death pension has not been established because he has failed to submit evidence to demonstrate his continued helpless child status and current income and net worth information as required by law. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow