Citation Nr: 21010442 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-29 551 DATE: February 24, 2021 ORDER Entitlement to accrued benefits are denied. Dependency and Indemnity Compensation benefits based on status as a helpless child (DIC) is denied. FINDINGS OF FACT 1. The Veteran died in September 2014; there was no pending compensation claims or other benefits that were due or unpaid; and burial benefits were paid to the Veteran’s widow. 2. The appellant was well over the age of 18 at the time of her application for DIC benefits, and was not permanently incapable of self-support by reason or mental or physical defect by the age of 18. CONCLUSIONS OF LAW 1. The criteria for accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. 2. The criteria for DIC benefits have not been met. 38 U.S.C. § 101; 38 C.F.R. §§ 3.57, 3.356. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1946 to March 1948, and from April 1950 to October 1952. The Veteran died in September 2014. The appellant is the Veteran’s daughter. In connection with this appeal, the appellant testified at a hearing before a Veterans Law Judge in August 2019. Unfortunately, the transcript of that hearing is not available. In November 2019, the appellant requested a second hearing. The appellant testified at a hearing before the undersigned in December 2020. A transcript of that hearing is of record. This case has been advanced on the Board's docket. Accrued Benefits Upon the death of an individual receiving VA benefit payments, certain persons shall be paid periodic monetary benefits to which the deceased beneficiary was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a). Accrued benefits to which a payee was entitled at his or her death under existing ratings or decisions, or those based on evidence in file at the date of death, will upon the death of such person, be paid as follows: (1) Upon the death of a veteran to the living person first listed as follows: (i) his or her spouse; (ii) his or her children (in equal shares); (iii) his or her dependent parents (in equal shares) or the surviving parent. See 38 C.F.R. § 3.1000(a). For purposes of determining eligibility for payment, a “child” of the veteran must be unmarried and must be either 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), 3.1000(d)(2). Accrued VA benefits are only paid to certain recipients rather than to the payee’s estate. In all other cases, only so much of the accrued benefit may be paid as necessary to reimburse the person who bore the expense of the last sickness and burial. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The appellant is the Veteran’s adult daughter. She is not shown to be a “child’ of the Veteran within the meaning of 38 C.F.R. §§ 3.57. Thus, accrued benefits may only be paid as necessary to reimburse any expenses she paid for the Veteran’s last sickness and burial. At the time of the Veteran’s death, he was not entitled to any benefits which were due and unpaid. In February 2015, the Veteran’s widow was paid a total of $1,109.00 for the Veteran’s transportation and burial. The Board notes that under 38 U.S.C. § 5310, a surviving spouse of a veteran is entitled to a one-time benefit for the month of the veteran’s death if at the time of the veteran’s death, the veteran was receiving VA compensation, i.e. a month of death check. 38 C.F.R. § 3.20(b). This benefit, however, is available only to a surviving spouse, and is not payable to the Veteran’s children. While the Board is sympathetic to the appellant’s assertions, the Board is bound by the applicable law and regulations. See 38 U.S.C. § 7104(c). Under these circumstances, the Board must find that there is no legal basis for granting the appeal. DIC The appellant seeks entitlement to DIC benefits. She was born in July 1952. At the time of her claim in November 2014, she was 62 years old, which is well beyond the age requirements for recognition as the Veteran’s “child” for DIC purposes. Instead, she asserts that she meets the definition of recognition as a helpless child for the purposes of VA benefits on the basis that she was permanently incapable of self-support before attaining the age of 18 years. In statements associated with her application, the appellant submitted statements from her family regarding her inability to work and would not be able to support herself. The appellant was born with retinal abnormalities that result in severe vision deficits. In February 1957, she had one foot distance vision in her right eye and 20/200 in her left eye. At the December 2020 Board hearing, the appellant testified that she earned an Associates of Science degree in college, was married and then divorced, and had children. She testified that she was unable to work due to her vision, which is reflected in minimal earnings throughout her life according to her Social Security Administration (SSA) Earnings Record. She testified that she divorced her husband around 1990 and lived off alimony payments. She testified that she started receiving SSA disability benefits in 1997. When the appellant applied for DIC benefits, she was in her 60s. She clearly is not considered a “child” of the Veteran for VA purposes based on age. In addition, she testified she was married while she was still in high school and had children of her own. The only way she can qualify for consideration of DIC benefits is if she meets the definition of “child” by showing she is a helpless child who had that status before she turned 18 years of age. VA provides certain benefits for a child of a veteran who is shown to be permanently incapable of self-support because of mental or physical defect by or before her 18th birthday. See 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1)(ii), 3.356. First, the Veteran ceased being a “child” of the Veteran when she married prior to age 18. Second, despite her unfortunate circumstance, the appellant clearly was able to overcome her disability, which was a physical disability that did not affect her ability to reason or communicate. Indeed, despite her vision impairment she graduated from college, married, and raised children, all of which are inconsistent with helplessness. The only evidence of helplessness prior to age 18 is the mere fact of the appellant’s blindness. The record does not contain convincing evidence that the blindness rendered her helpless prior to age 18. Her blindness is lifelong, existing prior to 18 and since then, and yet she clearly was able to function in educational settings after attaining age 18. The appellant apparently was not employed after 18, but the record showed that even before that age she was married, and she continued to be married for approximately 20 years, dedicating herself to raising a family. The Board does not find convincing evidence that the appellant was unable to work because of her blindness. The Board also notes that she did not even receive SSA disability benefits until her 40s. As such, the preponderance of the evidence establishes that the appellant was not a helpless child of the Veteran, or otherwise incapable of self-support by reason of mental or physical defect by the age of 18. As the appellant was not a helpless child of the Veteran, and otherwise does not meet the definition of “child” for VA purposes, she is not entitled to DIC benefits. The appeal is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.