Veteranclaims’s Blog

March 4, 2020

Single Judge Application; DIC; eligible “children.” 38 U.S.C. § 1313; Sucic v. Shulkin, 29 Vet.App. 121, 126 (2017); definition of “child” in 38 U.S.C. § 101(4)(A) controls in determining benefit eligibility;

Filed under: Uncategorized — veteranclaims @ 10:16 pm

Excerpt from decision:

” DIC is payable only to eligible beneficiaries as defined by law. See 38 U.S.C. §§ 1310(a) (listing eligible beneficiaries). When there is no surviving spouse, VA death benefits may be paid to eligible “children.” 38 U.S.C. § 1313. For purposes of determining eligibility for this benefit, a “child” must be unmarried and must (1) be under the age of 18, (2) have become permanently incapable of self-support before reaching the age of 18, or (3) be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57(a)(1) (2017); see 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); Burris v. Principi, 15 Vet.App. 348, 352-53 (2001).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-0541
MARLESA D. LYNCH, APPELLANT,
AND
No. 16-0542
CYNTHIA M. MARTINEZ, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
SCHOELEN, Judge: The appellants, Marlesa D. Lynch and Cynthia M. Martinez, through
counsel, appeal a pair of January 29, 2016, Board of Veterans’ Appeals (Board) decisions that
denied their claims for recognition as “children” for purposes of entitlement to dependency and
indemnity compensation (DIC). Record of Proceedings (R.) at 2-18.1 This appeal is timely, and
the Court has jurisdiction to review the Board’s decisions pursuant to 38 U.S.C. §§ 7252(a) and
7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26
(1990). For the following reasons, the Court will affirm the Board’s decisions.
1 The parties agreed that the appeals should be consolidated. See Lynch v. McDonald, U.S. Vet. App. Nos.
16-0541 and 16-0542 at 1 (unpublished order June 17, 2016).
2
I. BACKGROUND
The veteran, David Philpot, was serving on active duty with the U.S. Air Force when he
was killed on February 28, 1969. See, e.g., R. at 329, 332. In April 1969, the veteran’s parents
filed an application for DIC benefits in which they reported that the veteran was unmarried and
childless. R. at 340-42. The appellants, who assert that they are children of the deceased veteran,2
were minor children at that time. See R. at 237, 242. The following month, the veteran’s parents’
DIC claim was denied because their income exceeded the allowable threshold; they did not appeal
that decision. R. at 282.
In November 2015, the appellants jointly testified before the Board. R. at 50-72. They
testified that they were unaware of their entitlement to DIC benefits until they were adults, R. at
55, and asserted that their grandparents had fraudulently denied that the veteran had children so
that their grandparents could claim VA and other benefits for themselves, R. at 54-55.
In the decisions on appeal, the Board found that the appellants did not meet the statutory
and regulatory definitions of “children” for the purpose of VA benefits and denied their claims as
a matter of law. R. at 2-18. The Board further found that because the law was dispositive, any
“duty to assist” error would be harmless. R. at 4, 14. These appeals followed.
II. ANALYSIS
DIC is payable only to eligible beneficiaries as defined by law. See 38 U.S.C. §§ 1310(a)(listing eligible beneficiaries). When there is no surviving spouse, VA death benefits may be paid to eligible “children.” 38 U.S.C. § 1313. For purposes of determining eligibility for this benefit, a “child” must be unmarried and must (1) be under the age of 18, (2) have become permanently incapable of self-support before reaching the age of 18, or (3) be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57(a)(1) (2017); see 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); Burris v. Principi, 15 Vet.App. 348, 352-53 (2001).
2 The Secretary asserts that paternity has not been conclusively established. Secretary’s Brief (Br.) at 7 n.1.
The Board’s decisions do not explicitly make a factual finding on this matter, and the Court declines to do so in the
first instance. R. at 2-18. In any event, the question of paternity is not essential to the Court’s decision in this matter.
3
The Court reviews the Board’s determination regarding eligibility for VA survivor benefits
under the “clearly erroneous” standard set forth in 38 U.S.C. § 7261(a)(4). See Bowling v. Principi,
15 Vet.App. 1, 6 (2001). A finding of fact is clearly erroneous when the Court, after reviewing
the entire evidence, “is left with the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Gilbert v. Derwinski,
1 Vet.App. 49, 52 (1990). As always, the Board must provide a statement of the reasons or bases
for its determination, adequate to enable an appellant to understand the precise basis for the Board’s
decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown,
7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57.
The appellants argue that the record reasonably raised theories under which the 1969 DIC
application by the veteran’s parents might be construed as an application on the appellants’ behalf
that has remained pending since that time, when they would have been “children” under the
statutory and regulatory definitions, and that without considering these theories of retroactive
entitlement, the Board acted prematurely in denying their claims as a matter of law. Appellant’s
Br. at 7-14. Alternatively, the appellants argue that even if the record, as it currently exists, did
not reasonably raise the argument that a DIC claim on their behalf has been pending since 1969,
the record appears incomplete on its face and additional development could have reasonably raised
such theories; therefore, VA retained some minimum duty to assist that must be exhausted before
this appeal can be denied as a matter of law. Id. at 15-17. The Secretary disputes these contentions.
Secretary’s Br. at 5-19.
The Court discerns no clear error in the Board’s decisions. See U.S. Gypsum Co., 333 U.S.
at 395; Gilbert, 1 Vet.App. at 52. The appellants do not allege error in the Board’s findings of fact
as to their current ages and ability to support themselves. See Appellants’ Br. at 6-17. Regardless
of whether a DIC claim has remained pending since 1969, the appellants no longer meet the
statutory and regulatory requirements for eligibility, are no longer eligible recipients, and are not
permitted to receive DIC benefits, even on a retroactive basis. See Burris, 15 Vet.App. at 353
(holding that even where retroactive eligibility is established, applicants who no longer “satisfy
the statutory definition of a ‘child’ . . . may not be awarded DIC benefits” on any basis). Thus, the
Board properly determined that the appellants are ineligible to receive DIC benefits as a matter of
law, R. at 5-6, 15-16; see Sabonis v. Brown, 6 Vet.App. 426, 430 (1994) (where law and not
evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit
4
or lack of entitlement under the law), and any “duty to assist” failure is, necessarily, harmless, see
38 U.S.C. § 7261(b)(2) (requiring Court to “take due account of the rule of prejudicial error”); see
also Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (holding that harmless-error analysis applies
to the Court’s review of Board decisions and that the burden is on the appellant to show that he
suffered prejudice as a result of VA error).
The Board further determined that to the extent the appellants are asserting a claim for
equitable relief, it had no authority to grant benefits on an equitable basis. R. at 7-8, 17-18.
Although the Court is sympathetic to the appellants’ circumstances and understands their
frustration, the Court is not a court of equity and also may not grant the relief sought. See Moffitt
v. Brown, 10 Vet.App. 214, 225 (1997) (stating that the Court “is not a court of equity and cannot
provide equitable relief”); see also Mason v. Brown, 8 Vet.App. 44, 59 (1995) (noting that this
Court is “not a court of equity”); Schleis v. Principi, 3 Vet.App. 415, 418 (1992) (noting that the
Court may not take equitable considerations into account). Therefore, the Court will affirm the
Board’s decisions.
III. CONCLUSION
After consideration of the appellants’ and the Secretary’s pleadings and a review of the
record on appeal, the Board’s January 29, 2016, decisions are AFFIRMED.
DATED: February 28, 2018
Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)

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