Citation Nr: 18158937 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-03 375 DATE: December 18, 2018 ORDER Entitlement to service connection for chronic obstructive pulmonary disorder (COPD) as cause of death, for purposes of entitlement to retroactive benefits, is dismissed. FINDINGS OF FACT 1. The Veteran died on January [redacted], 1994. 2. The Veteran’s spouse died on April [redacted], 2011. 3. The appellant is not qualified as an eligible claimant. CONCLUSION OF LAW Because the Veteran and his surviving spouse have both died, and there is no qualified claimant, the Board has no jurisdiction to adjudicate the merits of the appellant’s claims. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1942 to November 1945. The appellant is a surviving adult child of the Veteran. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) from a December 2015 rating decision of the VA Regional Office (RO) and Pension Management Center (PMC) in Philadelphia, Pennsylvania. The Board notes that the Veteran, in his own lifetime, made a claim for entitlement to service connection for a nervous condition, a skin condition, an ear condition, and headaches in July 1947 and was granted service connection with a noncompensable evaluation for the ear condition and sinusitis, being deemed the cause of the headaches, in November 1947. The Veteran did not file a notice of disagreement or any other communication with VA that could be construed as an appeal of that decision, and thus that decision became final. The Veteran filed a new claim for service connection for schizophrenia and a heart attack in July 1985. The schizophrenia was denied in February 1988 on the basis of a lack of new and material evidence to reopen the previously denied nervous condition claim from 1947, and the heart condition was denied outright as well in the same decision. Again, the Veteran did not file a notice of disagreement or any other communication with VA that could be construed as an appeal of that decision, and thus that decision became final. The Veteran died on January [redacted], 1994, and his surviving spouse later died on April [redacted], 2011. At the time of the Veteran’s death, he was service connected only for the ear condition and the skin condition with noncompensable evaluations for both. The Veteran’s death certificate indicated he died of COPD, for which the Veteran was not service connected. The surviving spouse did not file any claims with VA that could be construed as a claim for dependency and indemnity compensation (DIC) or any other survivor’s or burial benefits. In January 1995, one of the Veteran’s seven surviving adult children, the appellant, filed a claim with VA for DIC pursuant to his father’s service. DIC benefits are monetary benefits that may be paid to a deceased Veteran’s surviving spouse, child, and parent. 38 U.S.C. § 101(14) (2012). Eligibility for DIC benefits is a threshold matter that must be established prior to adjudicating any DIC claim on the merits. The eligibility of a surviving spouse, child or parent is a separately appealable issue, and must first be adjudicated by the AOJ. See 38 C.F.R. § 3.104 (2017). Here, the RO has determined that the appellant is not a qualifying surviving child for the purposes of VA laws and regulations pursuant to DIC claims, in a December 2015 rating decision as noted above. It is that decision the appellant brings on appeal before the Board. A surviving child may file a claim for DIC benefits on behalf of themselves. 38 C.F.R. § 3.152(b)(1) (2017). As a threshold matter, in order to be considered a “surviving child” a claimant must be unmarried. 38 U.S.C. § 101(4) (2012); 38 C.F.R. § 3.57(a) (2017). Here, the Board notes that the appellant has never been married. In addition to being unmarried, a claimant must also be one of the following: (1) under 18 years of age; or (2) between the ages of 18 and 23 and pursing a course of instruction at an education institution approved by VA; or (3) permanently incapable of self-support prior to reaching 18 years of age. 38 U.S.C. § 101(4) (2012); 38 C.F.R. § 3.57(a) (2017) (emphasis added). The sole question for the latter is whether the child is permanently incapable of self-support by reason of physical or mental defects. 38 C.F.R. § 3.356(b) (2017). This is a factual determination to be made on a case-by-case basis, and the rating criteria are not controlling on any determination. Id. The Board notes that the appellant was born June 14, 1961. As such, he does not meet either of the first two criteria as noted above, and must therefore satisfy the legal requirement that he was permanently incapable of self-support prior to reaching 18 years of age, which was June 14, 1979 for the appellant. 38 U.S.C. § 101(4) (2012); 38 C.F.R. § 3.57(a) (2017). After his January 2015 DIC claim was received by VA, the appellant was notified by VA in multiple letters dated March, April, July, and August 2015 of the requirements noted above to establish himself as a surviving child for the purposes of his DIC claim. The initial statement in support of the appellant’s claim indicated the appellant was under the care of Dr. H.C. in 1993, and the appellant signed a medical release indicating he had had been treated from April 1, 1993 to September 30, 1993 by Dr. H.C. The appellant provided other private medical evidence from Dr. H.C. dated September 2015 that indicated the appellant had been diagnosed with schizophrenia, paranoid type, with anxiety. This evidence indicated the treatment by Dr. H.C. began on August 8, 1990 and that the appellant was permanently incapable of self-support in 1995. Additional medical records from Dr. H.C. were submitted that show outpatient treatment and counseling notes for the appellant going back to 1990. The appellant provided a newspaper clipping indicating he had been hit by a truck as a child in a 1969 accident. Attempts to gain medical records from that time from the insurance company involved were unsuccessful because the records were destroyed when the appellant turned age 20. There are no further records relating to any chronic disability or residuals from that 1969 accident that would suggest the appellant was permanently incapable of self-support prior to age 18. The Board notes the evidence submitted but finds that it does not show the appellant was permanently incapable of self-support prior to reaching 18 years of age, which was June 14, 1979. The analysis of whether a claimant is permanently incapable of self-support is based on the individual’s condition at the time of her 18th birthday. 38 C.F.R. § 3.356(b) (2017); see Dobson v. Brown, 4 Vet. App. 443 (1993). Here, the appellant has provided no evidence that indicates that he was incapable of self-support by age 18. The appellant submitted medical evidence illustrative of psychiatric disorders and treatment, but those records date no further back than 1990, when the appellant was approximately 29 years old. The appellant did provide a newspaper clipping showing he was injured in an accident where he was hit by a truck at approximately age 8, but there is no further evidence that injury from that accident made the appellant incapable of self-support by age 18. Even if, arguendo, that there were injuries from the 1969 accident that caused later incapacity, VA regulations require that the underlying cause of the incapacity must be the same as it was prior to age 18. If there is evidence a child was incapable of self-support prior to 18 years of age, the child may be found to be incapable of self-support at a later date despite intervening employment. 38 C.F.R. § 3.356(b)(2) (2017). However, the underlying cause of the incapacity must be the same as it was prior to 18, and there must not be evidence of an intervening disease or injury which could be the cause of the incapacity for self-support. Id. Here, all of the medical evidence provided by the appellant or Dr. H.C. points to psychiatric disorders and their treatment from 1990 forward, when the appellant was approximately 29 years old. There is no reference to any chronic injury or residuals resulting from the 1969 accident with a truck when the appellant was approximately 8 years old after the date of that incident. The Board thus finds that when the Veteran’s surviving spouse passed away on April [redacted], 2011, there remained no qualifying survivor, child, fiduciary, or otherwise, for the purposes of VA law and regulation since none of the children of the Veteran and his spouse met the definition of “child” at the time. 38 C.F.R. § 3.1000(a) (2017). The Board notes that VA law and regulation pursuant to substitution are not available to the Veteran’s survivors because he passed away prior to October 10, 2008, the effective date of the implementing regulations for substitution. See 38 C.F.R. §§ 38.1010(a); 20.1302(a) (2017). As a matter of law, appellants’ claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). The appellant, one of the late Veteran’s adult children, does not qualify by law or regulation as a surviving child. Therefore, his appeal has been rendered moot by virtue of his disqualification, and this appeal must be dismissed for lack of jurisdiction. See 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017). In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106 (2017). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel