Citation Nr: 21025838 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-05 345 DATE: April 29, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC), Death Pension and Accrued Benefits is denied. FINDINGS OF FACTS 1. The Veteran died in April 1956. The Appellant is his great-grandchild, and for VA compensation purposes, not considered the surviving spouse or child of the Veteran. 2. The Appellant lacks standing to bring a claim for entitlement to DIC, Death Pension, and/or Accrued Benefits. CONCLUSION OF LAW The criteria for entitlement to VA DIC benefits have not been met. 38 U.S.C. §§ 101, 1311, 1313, 1314, 5107 (2012); 38 C.F.R. §§ 3.3, 3.5, 3.57, 3.50, 3.102, 3.152. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Navy from October 1917 to July 1919. The Veteran died in April 1956. The Appellant is his great-granddaughter. The issue comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Appellant testified at an in-person hearing at the Board’s Central Office in Washington, DC. A copy of the hearing transcript is of record. The judge agreed to hold open the record for an additional 30 days to allow the Appellant an opportunity to supplement the record with further evidence. Regarding VA’s duty to assist, the Board notes that the Veterans Claims Assistance Act (VCAA) does not apply. The issue of entitlement to accrued benefits turns on statutory interpretation. Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is not applicable. Mason v. Principi, 16 Vet. App. 129 (2002); Sabonis v. Brown, 6 Vet. App. 426, 429- 30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought.). Entitlement to Application for Dependency and Indemnity Compensation DIC), Death Pension, and Accrued Benefits is denied. The Veteran’s great-granddaughter, in February 2016, filed a claim for entitlement to DIC, Death Pension, and Accrued Benefits. The Appellant is the Veteran’s great-granddaughter. She filed her claim in February 2016 and contended that she is entitled to DIC, Death Pension, and Accrued Benefits. Under VA law, DIC benefits are payable to the surviving children of a veteran if he died from a service-connected disability. 38 U.S.C. § 1310. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). Survivors pension, also known as nonservice-connected death pension benefits, is payable to the veteran’s dependents if all three criteria are met: 1.) the veteran must have had qualifying, active military service; 2.) the yearly family income must be less than the amount set by Congress; and 3.) claimant must be an un-remarried spouse or child. Failure of even one requirement results in the denial of the benefits. For purposes of determining entitlement to death pension, a surviving spouse or child is considered a dependent of the Veteran. 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). An eligible person may process to completion any claim pending when an appellant die, on or after October 10, 2008, if such a request for substitution is filed within one year of the date of the Veteran’s death. An eligible person is a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121 (a). 38 U.S.C. § 5121A. Eligible persons include the Veteran’s surviving spouse, child, surviving dependent parent, or the person who bore the expense of the claimant’s last sickness and burial to the extent as to reimburse him or her for such expenditures. 38 U.S.C. § 5121(a). VA regulation defines a child as an unmarried person who is either under the age of 18 or became permanently incapable of self-support due to a disability before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at a VA-approved educational institution and who is a legitimate child, a legally adopted child, an illegitimate child acknowledged by the father, or was a member of the veteran’s household at the time he/she became 18 years of age. 38 U.S.C. § 101 (4)(A)(ii); 38 C.F.R. § 3.57. The evidence of record shows that the Veteran died in April 1956 at Veterans Administration Hospital, in Richmond, Virginia. His death certificate lists no wife. Further, the cause of death as pulmonary embolism and phleboliths, left saphenous vein. At the time of his death, he had no original or reopened claim for benefit pending, nor was he receiving any VA compensation or pension benefits. The evidence also shows that the Appellant was born in July 1981 and is the child of V. D. R. and B. F. K. Of record also is evidence that V. D. R. is the child of the Veteran’s daughter, L. B. R., who was born in 1937 and died in April 1995. At the time of the Veteran’s death in April 1956, the Appellant’s grandmother (L. B. R.) was aged 19. Based on the evidence as presented, the Board finds that the Appellant’s claim is not warranted. As previously mentioned, the Appellant is the great-grandchild of the Veteran. VA statute specifically regulates that for entitlement to DIC, Death Pension, and Accrued Benefits, the claimant must be a child or surviving spouse. Here, the Appellant does not so contend that she is the surviving spouse, but rather the grandchild of the child of the Veteran, who incidentally, was not considered a child of the Veteran at the time of his death, for VA compensation purposes. As such, the Board finds that although the Appellant is the great-grandchild of the Veteran, she is not considered a “child” for VA purposes and, therefore, does not have standing to bring VA compensation claims for DIC, Death Pension, and Accrued Benefits. 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57 (a); Sucic v. Shulkin, 29 Vet. App. 121, 126 (2017) (per curiam order) (holding that the definition of “child” in 38 U.S.C. § 101 (4)(a) controls in determining benefit eligibility). In Sucic, the Federal Circuit held that the term “[t]he veteran’s children” in 38 U.S.C. § 5121 (a)(2)(B) is clearly and unambiguously governed by the definition of “child” in 38 U.S.C. § 101 (4)(A).” The Board acknowledges the Appellant’s belief that she is entitled compensation under VA law for DIC, Death Pension, and Accrued Benefits. Nonetheless, the law is clear that she either had to be a child as defined above and under 38 U.S.C. § 101 (4)(A)(ii); 38 C.F.R. § 3.57, or a surviving spouse. While the Board is sympathetic to the fact that the Appellant’s great grandmother was not notified in 1956 of the Veteran’s death, the criteria for entitlement for VA compensation are set by law, and the Board is without authority to grant benefits on an equitable basis. Accordingly, the claim must be denied as a matter of law. Sabonis, 6 Vet. App. 426 (1994). There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.