Citation Nr: 21026173 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-25 227 DATE: April 30, 2021 ORDER Whether the appellant may be substituted for the Veteran’s spouse for the purpose of pursuing a claim for service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran passed away in November 1969. 2. In September 2013, the Veteran’s surviving spouse filed an Application for Dependency and Indemnity Compensation (DIC). 3. In September 2016, the surviving spouse passed away 4. The appellant, the Veteran and his surviving spouse’s surviving adult daughter, requested to be substituted upon her mother’s death. 5. The appellant was born in September 1961; at the time of her mother’s death, she was over the age of 23; and she did not become permanently incapable of self-support prior to the age of 18. CONCLUSION OF LAW The criteria for entitlement to benefits based on substitution or accrued benefits have not been met. 38 U.S.C. §§ 101(4)(A), 5121, 5121A; 38 C.F.R. §§ 3.57, 3.1000, 3.1010. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active service with the United States Army from September 1945 to October 1948. The Veteran passed away in November 1969. In September 2013, the Veteran’s surviving spouse filed an Application for Dependency and Indemnity Compensation (DIC). An October 2013 rating decision denied the claim and the claim was appealed by the surviving spouse. Then in September 2016, during the pendency of the appeal, the surviving spouse passed away. In May 2017, the daughter (above named as the appellant) requested to become the substitute. In June 2017, the Regional Office (RO) issued a letter that notified the appellant that her request for substitution had been granted. The appeal was later certified to the Board of Veterans’ Appeals (Board). In August 2018, the Board remanded the claim for additional development to determine whether the appellant actually qualified as a “child” under 38 C.F.R. § 3.57 or whether the substitution was for another purpose, such as establishing that she bore any expenses of the last sickness or burial of her mother, the Veteran’s surviving spouse. Then in April 2020, the Board remanded the claim again for the same development. In April 2020, the RO sent the appellant a development letter, which requested that she provide information to confirm that she qualified as a substitute claimant. She did not respond. The RO then issued a Supplemental Statement of the Case (SSOC) in June 2020 and found the appellant does not meet the criteria to qualify as a substituted claimant. The claim is now again before the Board. As to the remand, the Board finds that the foregoing reflects substantial compliance with the August 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board will adjudicate the claim currently on appeal. Accrued benefits are periodic monetary benefits to which an individual was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at the date of death, and due and unpaid will, upon the death of such person, be paid to an eligible applicant. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. In descending order, accrued benefits are payable to the individual’s (1) spouse, (2) children, or (3) dependent parents. Id. If none of the above applies, then in all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of the last sickness or burial. Id. Individuals eligible for accrued benefits are the only individuals eligible for substitution. Id. A “child” for the purposes of eligible applicants for accrued benefits purposes generally refers to an unmarried child under the age of 18. See 38 C.F.R. §§ 3.57, 3.1000(d)(2). The only exceptions to this rule include if the child is a student pursuing higher education, in which case the age limit is 23 years old, or the child became permanently incapable of self-support before reaching the age of 18, in which case there is no age limit. Id. The appellant contends that she qualified for substitution. In May 2017, the appellant stated that her mother felt very strongly that her father’s death was related to combat wounds and that she wanted to continue her mother’s claim. While the Board certainly understands the appellant’s wish to carry out her mother’s wishes, the Board finds that the appellant does not qualify as a substitute. The Board is very sympathetic to the appellant’s desire to continue her mother’s claim; however, eligibility for substitution is a matter of law. In the present case, the appellant is the Veteran’s daughter and she has reported that she was born in September 1961. At the time of her mother’s death, she was over the age of 23. She has never contended, and the evidence does not suggest, that she became permanently incapable of self-support prior to the age of 18. The appellant was asked to provide information about her status, as well as about any expenses she may have paid for her mother’s last sickness or burial, but, as stated above, no response was received. Thus, there is no evidence to establish the appellant is a “child” under 38 U.S.C. § 5121. As such, the appellant does not meet the criteria for valid substitution and her claim for substitution must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive, the claim should be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). Because the substitution claim is denied, the matter of whether service connection is warranted for the cause of the Veteran’s death will not be considered on the merits. A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.