Citation Nr: 0814701	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  06-28 130	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the 
Republic of the Philippines


THE ISSUE

Whether the appellant is entitled to VA benefits as a child 
of the veteran.  


WITNESS AT HEARING ON APPEAL

The appellant


ATTORNEY FOR THE BOARD

Robert E. O'Brien, Counsel


INTRODUCTION

The veteran had recognized guerilla service from October 1942 
to May 1945 and Regular Philippine Army Service from May 1945 
to June 1945.  He died in December 2003.  The appellant is 
his daughter.  

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) on appeal from a May 2006 decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Manila, the Philippines, in which it was determined that the 
appellant was not entitled to survivor benefits.  



FINDINGS OF FACT

1.  The appellant was born in December 1950 and attained the 
age of 18 in December 1968.  

2.  It is not asserted, nor does the evidence show, that the 
appellant was permanently incapable of self-support before 
reaching the age of 18.  



CONCLUSION OF LAW

The requirements for the appellant's entitlement to VA 
benefits as a child of the veteran have not been met.  
38 U.S.C.A. §§ 101(4), 5103, 5103A, 5107 (West 2002); 
38 C.F.R. §§ 3.102, 3.159, 3.356 (2007).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The United States Court of Appeals for Veterans Claims 
(Court) has held that when the interpretation of a statute is 
dispositive of the issue on appeal, neither the duty to 
assist nor the duty to notify provisions of the VCAA are for 
application.  The Court has recognized that enactment of the 
VCAA does not affect matters on appeal from the Board when 
the question is limited to statutory interpretation.  Della 
Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. 
Gober, 14 Vet. App. 227 (2000).  

In the instant case, eligibility for VA benefits as the child 
of a veteran is outlined by statute and regulation.  Thus, 
the Board's review is limited to interpretation of the 
pertinent law and regulations.  In this case, the appellant 
has received actual notice of what is needed to establish 
entitlement to benefits as a child of the veteran (including 
as a threshold matter that she must be either under age 18, 
or under age 23 if attending school; or be a helpless child, 
that is, became permanently incapable of self-support before 
attaining age 18).  See the May 2006 decision letter on 
appeal.  Any further notice of these threshold criteria would 
be redundant and pointless.  


Factual Background, Legal Criteria, and Analysis

The evidence of record establishes that the veteran had 
recognized guerilla service from October 1942 to May 1945 and 
Regular Philippine Army Service from May 1945 to June 1945.  
He died in December 2003.  The appellant seeks recognition as 
his surviving child.  

The appellant testified at the hearing before the BVA in 
February 2008 that she was born in December 1950.  Transcript 
at 3.  The Board does not question the fact that she is the 
adult daughter of the deceased veteran.  However, she is now 
more than 57 years of age and does not qualify as a child for 
purposes of receiving survivor benefits.  

VA law provides that the term "child of the veteran" means 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 or an illegitimate 
child; and is under the age of 18 years; or before reaching 
the age of 18 years, became permanently incapable of self-
support; or after reaching the age of 18 years and until 
completion of education or training, but not after reaching 
the age of 23, is pursuing a course of instruction at an 
approved educational institution.  38 U.S.C.A. § 101(4); 
38 C.F.R. § 3.57.  

Under the governing statute and regulation outlined above 
(and as the appellant has been advised by the RO), to 
establish that she is a "child of the veteran" the appellant 
must satisfy criteria that include that she is under age 18, 
or under age 23 and attending school, or is a "helpless 
child" (shown before age 18 to be capable of self-support).  

Here, the appellant is more than 57 years old, and the 
evidence does not suggest (nor is it alleged) that she is a 
"helpless child."  At the time of the hearing, she did not 
refer to any physical or mental problems that might have 
rendered her incapacitated before reaching the age of 18.  
She only referred to currently being nearsighted and having 
arthritis.  Transcript at 4.  There is no provision in 
applicable VA laws and regulations providing entitlement to 
death benefits for children of veterans beyond the age of 23.  
In a case such as this, where the law and not the evidence is 
dispositive, the claim must be denied or the appeal to the 
Board terminated because of the absence of legal merit or the 
lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. 
App. 426 (1994).  


ORDER

The appellant is not entitled to VA benefits as a child of 
the veteran, and the appeal is denied.



	                        
____________________________________________
	RAYMOND F. FERNER
	Acting Veterans Law Judge, Board of Veterans' Appeals





 Department of Veterans Affairs



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