Citation Nr: 20026033 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 18-42 284 DATE: April 15, 2020 ORDER Death pension benefits based on status as a helpful child are denied. FINDING OF FACT The Appellant does not qualify for benefits as she is over 23 and was not deemed incapable of self-support prior to age 18. CONCLUSION OF LAW The criteria for death pension benefits have not been met. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.23, 3.57(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 1945 to August 1946. He passed away in July 1993. 1. Death pension benefits based on status as a helpful child The Appellant contends she is entitlement to death pension benefits as the disabled daughter of war-time Veteran. Non-service-connected death pension is an income-based benefit for low income qualifying survivors of a veteran who had requisite service during a period of war or was receiving compensation or retirement pay for a service-connected disability at the time of death. 38 U.S.C. § 1541. Death pension is available to a veteran’s surviving spouse and/or children. For these benefits, the term “child” is defined, in pertinent part, as an unmarried child of the veteran who is under the age of 18 years, became permanently incapable of self-support before reaching the age of 18 years, or after reaching the age of 18 years until reaching the age of 23 years is pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs. 38 C.F.R. § 3.57(a). Unfortunately, the Appellant’s claim fails to satisfy the criteria for pension benefits. 38 C.F.R. § 3.57. The Veteran has reported she is the daughter of the Veteran. While she has not provided a birth certificate to confirm he was her father, the record shows the Veteran listed three daughters on a July 1961 application for benefits, one with the same first name and birth year as the Appellant, and the Board finds no reason to doubt the Appellant’s assertion. Nevertheless, the evidence does not establish that the Appellant became incapable of self-support before reaching the age of 18. She is currently over the age of 23. The evidence shows the Appellant has profound hearing loss. She reported being deaf since the age of three. However, the evidence shows she has overcome her hearing impairment and proven to be able to support herself and function independently. In a January 2017 disability benefits questionnaire, the Appellant’s treating provider, Dr. T.B. indicated the Appellant was able to feed herself, prepare her own meals, bathe and tend to hygiene without assistance, manage her own finances, and drive. Dr. T.B. explained that she has limitations on communication and relies on sign language or written messages. Paystub information from March and April 2018 shows the Appellant worked part-time at a grocery store earning between $176 and $230 per week. In a January 2020 VA medical opinion, the examiner wrote that the Appellant has long-standing profound sensorineural hearing loss, relies on American Sign Language to communicate, does not use verbal speech to communicate, and can read written English. The Appellant reported being employed part-time at Kroger for two years and having worked in the school district and deaf school as a teacher aid. In addition to part-time work, she receives social security disability income (SSDI). Although the examiner noted limited information about the Appellant’s health and abilities prior to 2015, she found it less likely than not that the Appellant became permanently incapable of self-support by age 18. The examiner reasoned that the Appellant is currently employed part-time, was able to present to the examination appointment independently, has prior history of employment with the school district, and is currently supporting herself through part-time work and SSDI. The examiner further explained that a profound hearing loss alone would not preclude a person from normal activities of daily living. (Continued on the next page)   The evidence that the Appellant is currently employed and capable of completing activities of daily living and self-support, including driving and managing finances, weighs against a finding that she became permanently incapable of self-support before reaching the age of 18. In light of this, the Appellant cannot be considered a “child” as defined by VA statutes and regulations to qualify for death pension benefits. See 38 C.F.R. § 3.57. The Board is grateful for the Veteran’s honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise, and benefits are not warranted under the law. See 38 U.S.C. § 5107(a). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong, 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.