Citation Nr: 21067693 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-53 202 DATE: November 5, 2021 ORDER As the appellant cannot be recognized as the surviving child of the Veteran for VA benefits purposes, his claim for death pension benefits is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The appellant filed a claim for VA death pension and accrued benefits in June 2017, when he was 43 years of age; there is no evidence or contention that he became permanently incapable of self-support before reaching the age of 18 years. 2. The Veteran did not have a claim or appeal for benefits pending at the time of his death. CONCLUSIONS OF LAW 1. The criteria for entitlement to recognition of the appellant as the Veteran's surviving child, for the purpose of establishing eligibility for death pension benefits, have not been met. 38 U.S.C. §§ 101, 1313, 1542, 5121; 38 C.F.R. §§ 3.3, 3.24, 3.57, 3.1000. 2. The criteria for accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1943 to March 1946. He reportedly passed away in August 1987. The appellant has sought to be recognized as the Veteran's surviving child for the purposes of VA benefits. This matter before the Board of Veterans' Appeals (Board) arose from a July 2017 decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied the appellant's claims for death pension benefits and accrued benefits. The appellant requested to be scheduled for a Board hearing before a Veterans Law Judge, but he failed to report to the virtual hearing scheduled in August 2021 without providing good cause for his absence. See 38 C.F.R. § 20.603(d). Death pension benefitsrecognition as surviving child The child of a veteran may be entitled to receive Dependency and Indemnity Compensation, death pension, and accrued benefits. 38 U.S.C. §§ 1310, 1318; 38 C.F.R. § 3.22. Regarding nonservice-connected death pension benefits, a surviving child is entitled to such benefits if the surviving child's income or the income of the surviving child and any person with whom the child is residing, who is legally responsible for the child's support, does not exceed certain limits. 38 U.S.C. § 1542; 38 C.F.R. § 3.3(b)(4). Prior to reaching the merits of the claim for VA death pension benefits, however, the Board must first determine if the appellant has standing as a proper claimant to pursue this claim as the surviving "child" of the decedent. For VA purposes of eligibility to entitlement to death pension benefits, 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 pension benefits. Here, 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. The appellant filed his claim in June 2017, at which time he was 43 years of age. Thus, his claim was received well after his 18th or 23rd birthdays. Additionally, a May 2014 psychological report associated with the claims file indicated that the appellant had been married for 20 years. Further, there is no evidence of record indicating, nor has the appellant contended, that he permanently became incapable of self-support prior to reaching the age of 18. Accordingly, based on the evidence, the appellant cannot qualify as a "child" of the Veteran, and the appeal must be denied. 38 C.F.R. § 3.57(a). The United States Court of Appeals for Veterans Claims 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). 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). Therefore, the appellant's claim for VA death pension benefits is denied. Accrued benefits Accrued benefits are defined as periodic monetary benefits authorized under a law administered by VA, to which a payee was entitled at death under existing ratings or decisions or those based on evidence in the file at the date of death, and due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). For a claimant to prevail on an accrued benefits claim, the record must show that: (i) the individual has standing to file a claim for accrued benefits; (ii) the VA payee had a claim pending at the time of death; (iii) the VA payee would have prevailed on the claim if he or she had not died; and (iv) the claim for accrued benefits was filed within one year of the VA payee's death. 38 U.S.C. §§ 5101(a), 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Here, the appellant's claims must fail for at least two reasons. First, as established, he lacks standing to be considered a surviving child for VA benefits purposes. Also, his claim fails because there is no evidence that the Veteran had a claim pending at the time of his death. At no point has the appellant contended that the Veteran had an unadjudicated claim or appeal pending at the time of his death. Rather, the appellant has simply argued that the Veteran was entitled to benefits due to circumstances concomitant to his active service. Based on the appellant's lack of standing to bring this claim, as well as the absence any evidence of a pending claim, the current claim for accrued benefits must be denied as a matter of law. See Sabonis, supra. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.