Citation Nr: 21069173 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-51 907 DATE: November 17, 2021 ORDER Entitlement to VA survivor's benefits is denied. FINDING OF FACT The evidence is inadequate to establish that the appellant is entitled to VA survivor's benefits. CONCLUSION OF LAW The criteria for entitlement to VA survivor's benefits have not been met. 38 U.S.C. §§ 101, 1521; 38 C.F.R. §§ 3.3(b), 3.24, 3.57, 3.210, 3.211, 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active military service from May 1942 to July 1946. The appellant has asserted that the Veteran died in September 1962 and is seeking entitlement to VA survivor's benefits based upon the Veteran's military service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA)'s July 2018 decision. The Board notes that the appellant's mother (the Veteran's daughter) has also submitted a claim for VA survivor's benefits, which was last denied in an April 2018 decision that notified her of the reasons for the denial of her claim. She did not appeal that decision. Therefore, that decision is final, and the Board has no jurisdiction to address it. As the appellant has consistently referred to his mother's claim in addition to his own in all correspondence submitted to VA, the Board clarifies for the appellant that his claim is separate and distinct from his mother's claim and, therefore, the Board's decision herein only applies to his appeal filed after the July 2018 decision on his claim. See November 2018 statement of the case (SOC) and VA Form 9. Entitlement to VA survivor's benefits Since May 2017, the appellant has sought entitlement to VA survivor's benefits. His claim was initially denied in July 2017 notification letter and again in decisions issued in January 2018, May 2018 and July 2018, after which he submitted a notice of disagreement and this appeal ensued. The appellant's claim for VA survivor's benefits has been essentially denied on two grounds. The AOJ has denied the appellant's claim because he has not submitted requested documentation, to wit, proof of the Veteran's death (e.g., the Veteran's death certificate) or evidence establishing that he is a helpless child of the Veteran. Secondly, the appellant's claim has been denied because the evidence does not establish his status to receive VA survivor's benefits, i.e., a dependent child of the Veteran. From the appellant's statements, it appears that he has asserted that he is both the child (i.e., "son") of the Veteran but also of the Veteran's daughter. The AOJ found that the evidence establishes that he is the Veteran's grandchild, which status does not afford him entitlement to VA survivor's benefits. The Board finds that the appellant has not submitted the evidence requested and, therefore, the record is inadequate to establish the appellant is entitlement to VA survivor's benefits. In duty to assist letters sent to the appellant in May 2017, October 2017 and March 2018, the appellant was advised that additional information and evidence was needed from him to support his claim. Specifically, he was advised that VA needed a copy of the Veteran's death certificate and was asked to submit it. He was also advised, given his statements on his application, that it was believed he was claiming benefits as an adult disabled (helpless) child and asked him to provide information and evidence establishing that he was helpless as of the age of 18, including a statement by his physician, treatment records, school records, employment records and lay statements. The appellant was also advised through the various decision letters that the evidence does not establish he is the Veteran's child, but rather his grandchild. He was advised that, as the Veteran's grandchild, he is not eligible for VA benefits. Unfortunately, although the appellant asserts that he has provided sufficient information and evidence to support his claim, the Board does not find evidence to verify the Veteran's death or to establish the appellant is the Veteran's helpless child. The appellant has asserted that he submitted "alternate" evidence to the Veteran's death certificate and proof of him being disabled. With regard to verifying the Veteran's death, the appellant has asserted that he has submitted an "alternate" death certificate. In a VA Form 21-4138 received in March 2018, the appellant stated that he has provided VA forms 21-4138 and 21-4142 for replacement for the death certificate. However, the attached VA Form 21-4138 did not say anything about the Veteran's death and prior statements submitted only provided the date of his death. Moreover, although the appellant submitted a release of records on VA Form 21-4142 in June 2017, the appellant never identified where those records are located so that VA could seek them. He has not provided a completed VA Form 21-4142a or other statement identifying what records he desires VA to obtain. VA regulations set forth what information and evidence is necessary to establish an individual's death. Deaths other than those that occurred abroad or are of a member of a uniformed service should be established by one of the following types of evidence: (1) A copy of the public record of the State or community where death occurred (i.e., a death certificate); (2) A copy of a coroner's report of death or a verdict of a coroner's jury of the State or community where death occurred, provided such report or verdict properly identified the deceased. 38 C.F.R. § 3.211(a). Where death occurred in a hospital or institution under the control of the United States Government, either a death certificate or a clinical summary or other report showing the fact and date of death signed by a medical officer. 38 C.F.R. § 3.211(b). If the foregoing evidence cannot be furnished, the reason must be stated. 38 C.F.R. § 3.211(e). The fact of death may then be established by the affidavits of persons who have personal knowledge of the fact of death, have viewed the body of the deceased, know it to be the body of the person whose death is being established, setting forth all the facts and circumstances concerning the death, place, date, time, and cause thereof. Id. If proof of death, as previously defined, cannot be furnished, a finding of fact of death, where death is otherwise shown by competent evidence, may be made by an official authorized to approve such findings. Where it is indicated that the veteran died under circumstances which precluded recovery or identification of the body, the fact of death should be established by the best evidence, which from the nature of the case must be supposed to exist. 38 C.F.R. § 3.211(f). In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted for the purposes of paragraph (f) of this section. 38 C.F.R. § 3.211(g). In the present case, the appellant has not submitted a death certificate, or any other evidence identified in 38 C.F.R. § 3.211(a) and (b), to establish the Veteran's death. Moreover, the appellant has not submitted a statement setting forth the reasons why he is unable to submit such evidence. Although it appears the appellant attempted to submit alternative evidence of the Veteran's death by providing a medical release (VA Form 21-4142), he did not identify the location of any records so VA was unable to obtain records to support the appellant's contention that the Veteran is deceased and when and how he died. Thus, unfortunately, the only evidence of record establishing the Veteran is deceased is the appellant's and his mother's statements that he died in September 1962, which are insufficient to establish the Veteran's death. Therefore, adequate evidence has not been received to establish that the Veteran is deceased and when and how he died. In addition, the appellant has not submitted any evidence to establish that he is the Veteran's child. VA regulations also provide a specific definition of the term "child" and what information and evidence is needed to establish an individual is a child. Generally, VA survivor's benefits are payable to a veteran's surviving spouse, child, or dependent parent. See 38 C.F.R. §§ 3.3, 3.5 and 3.1000. For purposes of determining eligibility as a claimant for VA survivor's benefits under Title 38, a "child" is an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is/was a member of a veteran's household, or an illegitimate child. Such "child" must either be under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.356. Where it is necessary to determine the legitimacy of a child, evidence will be required to establish the legality of the marriage of the mother of the child to the veteran or to show that the child is otherwise legitimate by State laws together with evidence of birth. 38 C.F.R. § 3.210(a). Where the legitimacy of a child is not a factor, evidence to establish legitimacy will not be required provided that evidence is on file that meets the requirements of establishing an individual's maternity or paternity sufficient to warrant recognition of the relationship of the child without regard to legitimacy. Id. Proof of birth is sufficient to establish the maternity of an illegitimate child. 38 C.F.R. § 3.210(b). As to the father, the sufficiency of the evidence will be determined in accordance with the facts found. The evidence may consist of the following: (1) a written acknowledgement signed by the veteran; (2) evidence of a judicial decree recognizing the veteran as an individual's father and ordering him to contribute to the child's support or for other purposes; or (3) any other secondary evidence which reasonably supports a finding of a relationship such as a copy of the public record of birth or church record of baptism showing that the veteran was the informant and was named as a parent of the child; statements of persons who know that the veteran accepted the child as his; or information obtained from service department or public records, such as school or welfare agencies, showing that, with his knowledge, the veteran was named as the father of the child. Id. In the present case, the appellant has neither submitted his birth certificate nor any other evidence as described in 38 C.F.R. § 3.210(b) to establish that he is the Veteran's child. Rather, the only evidence is the appellant's written statements, which are not sufficient given the inconsistencies of his reports. The Veteran's daughter submitted a claim for VA survivor's benefits around the same time as the appellant, and she listed the appellant as her child. On his initial application, the appellant submitted the same information as the Veteran's daughter but also clearly stated in response to question 30C that "he is the son of [O.P.]," whom he also listed in the space for question 29C as his "mom." Hence, the evidence indicates that the appellant is more likely not the Veteran's child (either legitimate or illegitimate), but instead his grandchild. Moreover, the dates reported by the appellant and his mother as to the death of the Veteran and the birth of the appellant do not support finding that the appellant is the Veteran's child as the dates indicate the appellant was born 13 years after the Veteran reportedly died. The AOJ has advised the appellant of these findings but he has not submitted any opposing evidence other than his statements, which are inadequate. Moreover, not only has the appellant not established that he is the Veteran's child, he has not submitted sufficient evidence to establish that he was incapable of self-support prior to age 18 (i.e., that he is the Veteran's helpless child). At all relevant times, the appellant was neither a minor child (under the age of 18) nor was he in a program of education or training and under the age of 24. The appellant has established by his driver's license that he was born in March 1975. Thus, the appellant attained the age of 18 in March 1993 and the age of 24 in March 1999. The appellant did not file for VA survivor's benefits until May 2017 when he was 42 years old. Consequently, the appellant was not a child for VA purposes under either 38 C.F.R. § 3.57 (a)(1)(i) or (iii) at the time he filed his initial claim in May 2017. See Lynch v. Wilkie, 30 Vet. App. 296, 303 (2018). In addition, although he has provided evidence indicating that he has been found disabled by the Social Security Administration (SSA) and has been in receipt of old-age, survivors, and dependents insurance (OASDI) benefits since October 2004, the appellant was 29 years old at that time. Moreover, although the appellant submitted medical evidence indicating he has a current diagnosis of bipolar II disorder, the earliest evidence establishing this diagnosis is from August 2004. The appellant has not submitted any evidence to establish what his mental and/or physical health status was in or around March 1993, when he turned 18 years old. Hence, the evidence is insufficient to demonstrate the appellant was incapable of self-support prior to turning 18 years old. In conclusion, the Board finds that there is insufficient evidence to establish that the appellant is entitled to VA survivor's benefits primarily because he has not submitted the evidence requested by the AOJ. The appellant has been notified multiple times of what information and evidence is missing and need to establish his claim. The Board acknowledges that he believes he has submitted sufficient evidence, but the AOJ's repeated correspondence has advised him that he has not. It is within VA's purview to request such documentation to substantiate the claim for benefits that the appellant seeks. Id. at 519. It is the responsibility of a claimant to cooperate with VA in assisting in the development of his or her claim. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). However, it is ultimately the claimant's responsibility to present and support their claim for benefits under the laws administered by VA. See 38 U.S.C. § 5107(a); see also Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009); Skoczen v. Shinseki, 564 F.3d 1319, 1328 (Fed. Cir. 2009). As the appellant has not submitted the information and evidence needed to establish his claim, the Board has no choice but to find the record inadequate to resolve the appellant's claim in his favor and, therefore, his appeal is denied. In making this determination, the Board acknowledges the appellant's contention that a May 2017 letter to him awarded him benefits. Unfortunately, the Board finds that the letter the appellant refers to was not an award letter but was merely a duty to assist letter seeking additional information and evidence from the appellant. The appellant appears to have taken the word "award" used in the letter as an indication that an award of benefits was made. However, in doing so, he has taken that word out of context. In reading the letter as a whole, the Board finds that it advises the appellant that VA was still working on his claim and additional evidence was needed from him prior to adjudicating his claim. The first sentence of the letter starts with "We are working on your claim..." and the second full sentence (under the section entitled "What Do We Still Need from You?) states "We need additional evidence from you." Moreover, in the same sentence in which the word "award" appears, the letter states that "In order for you to be added to your award, we need the following information to determine if you both can be considered helpless..." The letter then tells the appellant what information and evidence is still needed and then advises him of when and how to submit such evidence. The Board acknowledges that the use of the word "award" in this letter may be unclear. The language used generally applies to a veteran who is already receiving VA benefits and is seeking additional benefits for a helpless child. It appears that, although the language was modified for the appellant, it did not take into account that he was not already awarded benefits. However, given the language of the remainder of the letter, the Board finds it is clear that this letter is not a decision letter. Moreover, a review of the claims file does not show that a decision letter was previously issued to the appellant awarding him benefits. Rather, the first decision in the claims file was issued in July 2017 and it was a denial of benefits. The Board is sympathetic to the appellant and is sorry for any confusion the May 2017 duty to assist letter has created. However, there is nothing in the claims file to indicate that an award of benefits was granted. Hence, there is no decision to date that authorizes payment of benefits to the appellant. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.