Citation Nr: 18154202
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-42 256
DATE:	November 29, 2018
ORDER
Eligibility of the Appellant as a dependent child of Veteran for the purpose of receiving Dependent and Indemnity Compensation (DIC), accrued benefits, and death pension is denied.
FINDING OF FACT
1. The Appellant was born in October 1976, and is the biological son of the Veteran. 
2. The preponderance of the evidence is against a finding that the Appellant was permanently incapable of self-support prior to obtaining the age of 18.
CONCLUSION OF LAW
The criteria for the appellant to receive DIC, death benefits, or accrued benefits have not been met.  38 U.S.C. §§ 101(4)(A), 5107; 38 C.F.R. §§ 3.57, 3.356.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from May 1968 to July 1969.  The Veteran died in June 2009.  The Appellant is the Veteran’s biological son. 
1. Recognition of claimant as a dependent child of Veteran for VA benefit purposes 
The term child is defined, for purposes of Veterans’ benefits, as 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 and who is a member of the Veteran’s household or was a member of the Veteran’s household at the time of the Veteran’s death, or an illegitimate child and who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self-support; or (iii) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution.  38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57.
The Appellant asserts that he should be entitled to DIC and death benefits that were previously granted for his biological father’s death.  The Veteran died in June 2009 and DIC was subsequently granted by the VA, with a finding that the Veteran’s cause of death was due to a service-connected disability.  However, the Appellant was found to be not an eligible survivor or dependent for those benefits, due to his age and relative ability to care for himself at the time of the Veteran’s death. 
The record shows that the Appellant, is the Veteran’s biological son, born in October 1976.  Therefore, neither the propriety of the DIC, nor the Appellant’s status as a legitimate child of the Veteran is in question.  Therefore, the only question that must be addressed is whether the Appellant fulfills the eligibility criteria to be a child of the Veteran.  Here, the evidence of record shows that the Appellant is 42 years of age.  Therefore, he is ineligible to be considered as a dependent child, based strictly on age, which must be under 18, or pursuing advanced eduction or training, which must be under 23.  Accordingly, the only way in which the Appellant may achieve qualifying status as a dependent child, for VA benefit purposes, is demonstrating that he was permanently incapable of self-support before reaching the age of 18. 
The Board notes that the record shows that the Appellant currently, or as of 2006, was granted Social Security Administration (SSA) disability benefits.  The medical records provided in obtaining that determination from the SSA are of record, and have been thoroughly reviewed by the Board.  A review of those medical records shows that the Appellant has been found permanently disabled.  However, the record also shows that the permanent disability was caused by a serious motor vehicle accident in 2005.  The Board notes that in 2005, the Appellant, who was born in 1976, was already older than 18.  Therefore that disability does not fulfil the criteria under 38 C.F.R. § 3.57 as it is not shown to have occurred prior to the Appellant’s eighteenth birthday.  
Prior to the 2005 accident, the Board finds no evidence of a permanent disability, that arose prior to the Appellant’s eighteenth birthday, and caused him to not be able to care for himself.  The Board notes that the Appellant has asserted, in his notice of disagreement and substantive appeal that he had loss of sight in his right eye, prior to turning 18.  The Appellant turned 18 in October 1994.  However, a review of all the medical evidence provided by the Appellant shows no objective medical evidence of any eye blindness present during or prior to that time, to include the claimed eye disability.  In addition, the evidence does not show that any right eye disability resulting in permanently inability to care for himself resulted prior to his eighteenth birthday.
The Board notes that in reviewing the Veteran’s SSA medical records, later medical reports show some reported history of loss of sight in the right eye.  Specifically, in a comprehensive medical analysis of the Appellant’s overall disability picture in 2006, a private examiner noted right eye surgery as part of the Appellant’s medical history.  However, all subsequent physical examinations, medical reports, treatment notes, and other medical evidence, have noted no evidence of any loss of sight in the Appellant’s right eye.  Most physical examinations show normal results when referring to the eyes.  Therefore, the Board cannot find that the Appellant suffered from a permanently disabling loss of sight in the right eye prior to turning eighteen. 
The Board notes that even considering the Appellant’s contentions that he had loss of sight in his right eye prior to turning 18, the evidence does not show that such condition was permanent, as the loss of sight seemed to have been resolved, by surgery, by the time of the accident in 2005.  The Board also notes that the evidence of record does not demonstrate any evidence of what caused that disability, or when it happened.  While the Appellant asserts that eye disability arose prior to his turning 18, he has provided little to no other evidence, to include lay assertions, as to its nature or etiology.
The Board also notes that even if the VA concedes that the Veteran did have a loss of vision in his right eye prior to his eighteenth birthday, which the Board does not concede, that hypothetical would still not meet the criteria of qualifying the Appellant for VA benefits.  The standard outlined in 38 C.F.R. § 3.57 is that a disability must cause the Appellant to be permanently incapable of self-support.  Here, the Appellant has provided no description or details with which he can support the assertion that losing sight in one eye made him incapable of self-support.  The evidence seems to be to the contrary as evidence submitted to the SSA for the purposes of disability benefits after his accident in 2005 shows that the Appellant worked at a grocery store and as a general laborer since 1999, after he turned 18 and after the manifestation of any right eye disability.  Therefore, the Board must find that the preponderance of the evidence is against finding that the Veteran was permanently incapable of self-support prior to turning 18, and therefore he remains ineligible as a dependent child for VA benefits for DIC.   
Although the Board is very sympathetic to the Appellant’s claim, particularly as it acknowledges that the Appellant is currently disabled, and is a biological son of the Veteran, the law and regulations governing dependents and their eligibility for benefits is very specific.  The Board is without authority to grant eligibility to benefits simply because it might perceive the result to be equitable.  38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994).  The Board must apply the law as it exists, and cannot extend benefits out of sympathy or respect for a particular claimant.  Owings v. Brown, 8 Vet. App. 17 (1995), Kelly v. Derwinski, 3 Vet. App. 171 (1992). 
Accordingly, the Board finds that the Appellant cannot be recognized as the Veteran’s dependents for purposes of VA death benefits, accrued benefits, or DIC.  The Board finds that the preponderance of the evidence is against the claim, and the claim must be denied.  38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57.  
 
Harvey P. Roberts
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Zi-Heng Zhu, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

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