Citation Nr: 21027574
Decision Date: 05/06/21	Archive Date: 05/06/21

DOCKET NO. 16-28 790
DATE:  May 6, 2021

ORDER

Entitlement to recognition of the appellant as a child for VA purposes is denied.

FINDINGS OF FACT

1. At the time of his death in July 2013, the Veteran was survived by the appellant, his daughter. 

2. The appellant does not meet the statutory definition of a child.

CONCLUSION OF LAW

The criteria for recognition of the appellant as a child of the deceased Veteran for the purpose of establishing entitlement to VA death benefits have not been met. 38 U.S.C. §§ 38 U.S.C. 101(4)(A), 104(a) (2018); 38 C.F.R. §§ 3.1, 3.57 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active military service from February 1946 to May 1947. He died in July 2013. The appellant is his daughter.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 

The appellant has claimed that she is entitled to VA death benefits. Specifically, she stated that the Veteran's active service entitled his children to VA benefits. She added that the Veteran's daughter (i.e. the appellant's sister), R. R. L., was entitled to VA death benefits because she was disabled. Further, she referenced a "Hand Book" and emphasized that the Veteran's and/or her enrollment in "Priority Group 1" supported her eligibility.

For VA purposes, a "child" of the Veteran must be "unmarried" and either (i) under the age of 18; (ii) became permanently incapable of self-support before the age of 18; or (iii) pursuing a course of instruction at an approved educational institution between the ages of 18 and 23 years. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57. 

A review of the record shows that the appellant is an adult child born in December 1950. She was 64 years old when she filed a claim for VA death benefits. There is no evidence that she became permanently incapable of self-support prior to reaching the age of 18. Furthermore, she has never contested her age or capacity for self-support. As such, the Board finds that the appellant does not have the requisite standing, and hence, status as a proper claimant for VA death benefits. 

While the appellant has asserted that the Veteran's children seek VA death benefits, including a disabled daughter, R. R. L., she does not contend, and the record does not otherwise reflect, that she has the legal authority to file a claim on behalf of R. R. L. or her other siblings. Moreover, her application for VA death benefits did not indicate that she was a "custodian filing for a child."

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As the appellant is not a "child" for VA purposes, she does not meet the basic eligibility requirements for establishing entitlement to VA death benefits. In this case, the law and not the evidence is dispositive. Accordingly, the appellant's claim must be denied as it is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994).

 

 

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Ware, 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.