Citation Nr: 20003564 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 15-04 781 DATE: January 15, 2020 ORDER Entitlement to recognition as the Veteran’s surviving child for the purposes of establishing eligibility for dependency and indemnity compensation (DIC), death pension, and accrued benefits is denied. FINDINGS OF FACT 1. The appellant filed an original claim for VA death benefits on October 6, 2014, at which time she was 35 years of age. There is no evidence or contention that she is a helpless child. 2. The appellant’s original October 2014 claim for accrued benefits was filed more than one year after the date of the Veteran’s death in August 1988. CONCLUSION OF LAW The criteria for recognition of the appellant as the surviving child of the Veteran for purposes of basic eligibility for DIC, death pension, and accrued benefits are not met. 38 U.S.C. §§ 101, 1313, 1542, 5121; 38 C.F.R. §§ 3.3, 3.24, 3.57, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1974 to June 1980. He died in August 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In her February 2015 VA Form 9, the appellant requested a personal hearing before a Veterans Law Judge. However, in November 2016, she withdrew her request for a hearing pursuant to 38 C.F.R. § 20.704(e). In a July 2018 letter, the appellant expressed interest in obtaining the assistance of a veterans service organization (VSO). In a December 9, 2019 letter, the Board provided the appellant with information regarding how to obtain the representation of a VSO. However, the appellant did not respond within 30 days of the December 9, 2019 letter. She is therefore proceeding without representation in this matter. 1. Entitlement to DIC, accrued benefits, and death pension, to include the appellant’s basic eligibility for VA death benefits. In this matter, the appellant is seeking entitlement to DIC as a surviving child based upon the Veteran’s death while on active duty. Where a veteran dies in service, from a service-connected or compensable disability, VA shall pay DIC to the veteran’s surviving spouse, children, and parents. 38 U.S.C. §§ 1310, 1312, 1316. A surviving child is entitled to DIC where there is no surviving spouse. 38 U.S.C. § 1313(b). For VA purposes, the term “child” means an unmarried person who is a legitimate child, a legally adopted child, a stepchild who was a member of the Veteran’s household at the time of death, or an illegitimate child (acknowledged by the Veteran either in writing or via court ordered child support) of the Veteran; and is under the age of 18 years; or before reaching the age of 18 years became permanently incapable of self-support; or 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); 38 C.F.R. § 3.57. Therefore, the threshold question to be answered in this case is whether the appellant has the appropriate status to file a claim for entitlement to VA death benefits. The Veteran died in August 1988. The appellant filed a claim for VA death benefits in October 2014. 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 on October 6, 2014, at which time she was 35 years of age. It is neither shown nor alleged that, prior to turning 18 years of age, the appellant was permanently incapable of self-support. 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). The United States Court of Appeals for Veterans Claims (Court) has held that “when dealing with a question of status…the person seeking to establish that status must prove it by a preponderance of the evidence and that, therefore, the benefit of the doubt doctrine is not applicable to that determination.” Rogers v. Derwinski, 2 Vet. App. 419, 422 (1992)); Aguilar v. Derwinski, 2 Vet. App. 21 (1991). To some extent, the appellant appears to contend that she was unaware of her eligibility for DIC benefits and, as a result of a family situation, these benefits were not sought on her behalf. See, e.g., the VA Form 9 dated February 2015. Crucially, the evidence of record demonstrates that the appellant is not statutorily eligible to receive DIC benefits in her own right as she does not meet the requirements of “child” as defined in 38 C.F.R. § 3.57(a). Moreover, she is not a fiduciary for a surviving spouse, child, or parent of the Veteran. In short, she is simply not an eligible claimant for purposes of entitlement to DIC benefits. Where, as here, the law and not the evidence is dispositive, the appeal must be denied for failure to state a claim upon which relief may be granted. Sabonis v. Brown, 6 Vet. App. 426 (1994). The appellant’s claim is therefore denied. A claim for death pension, compensation, or dependency and indemnity compensation, by an apportionee, surviving spouse, child or parent is deemed to include a claim for any accrued benefits. 38 C.F.R. § 3.1000(c). Therefore, the Board has considered the appellant’s entitlement to accrued benefits. Critically, however, an application for accrued benefits must be filed within 1 year after the date of the Veteran’s death. 38 C.F.R. § 3.1000(c). In this matter, basic eligibility for accrued benefits is denied because the Veteran died in August 1988, and the appellant filed an original claim in October 2014, which was greater than one year after the date of his death. Under certain circumstances, a statutory filing period may be equitably tolled. See Santana-Venegas v. Principi, 314 F.3d 1293 (Fed. Cir. 2002). The first is where the claimant actively pursued his claim, but it was defective; such has not been alleged or shown in this case. Id. The other is where the claimant has been “induced or tricked” by, in this case, VA’s, misconduct into allowing a deadline to pass. Id. Here, there was no misconduct on the part of VA; any misconduct or negligence by any party in failing to notify the appellant of her potential entitlement to VA benefits could not legally obligate VA to extend the statutory deadlines. Equitable tolling has also been expanded to apply where the claimant’s “failure to file was the direct result of a mental illness that rendered him or her incapable of ‘rational thought or deliberate decision making.’” Barrett v. Principi, 363 F.3d 1316 (2004). No allegations or indications of such mental incapacity have been advanced. Federal laws authorizing monetary benefits are enacted by Congress, and, unless an individual meets all of the requirements of a particular law, he or she is not entitled to the benefit; indeed, the benefit cannot be awarded, notwithstanding extenuating circumstances or claims of fairness. See, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414, 426, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (1990); Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994). In other words, unless all of the requirements of a particular law are met, a claimant is not entitled to the benefit regardless of the circumstances. As the law and not the evidence is dispositive in this case, the claim must be denied as a matter of law. Sabonis, supra. While the Board is sympathetic to the appellant’s situation, it is bound by the law in effect and has no authority to grant additional benefits on an equitable basis. It is, however, pertinent to note that the Secretary of Veterans Affairs (Secretary) does have discretionary authority to grant equitable relief in certain circumstances. See 38 U.S.C. § 503(a). While the Board may not act for the Secretary in the exercise of such authority (see 38 C.F.R. § 2.7(c)), the appellant may petition the Secretary directly for consideration of equitable relief with respect to her claim. K. CONNER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.