Citation Nr: 0006352	
Decision Date: 03/09/00    Archive Date: 03/17/00

DOCKET NO.  98-00 158	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUE

Entitlement to death pension benefits.


ATTORNEY FOR THE BOARD

A. P. Simpson, Associate Counsel


INTRODUCTION

The veteran served on active duty from May 1966 to June 1969.

This case comes before the Board of Veterans' Appeals (the 
Board) on appeal from a June 1997 administrative decision of 
the Nashville, Tennessee, Department of Veterans Affairs (VA) 
Regional Office (RO).  In that decision, the RO determined 
that the veteran's son was not a "child" for VA benefits 
purposes.  


FINDINGS OF FACT

1.  The appellant was born on December 15, 1964.

2.  The appellant filed a claim for death pension benefits on 
April 24, 1997, when he was 32 years old.

3.  The claimed benefits are not available to surviving 
children of a veteran after they reach the age of 23.


CONCLUSION OF LAW

The appellant is not a benefits-eligible claimant for 
purposes of entitlement to death pension benefits as the 
child of the veteran.  38 U.S.C.A. §§ 101(4), 1542 (West 
1991); 38 C.F.R. § 3.57(a) (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant contends that he should be given death pension 
benefits because he is the child of the veteran, and he was 
15 years old at the time of the veteran's death.  Thus, he 
states that he is warranted benefits from the time of the 
veteran's death until his 18th birthday, which was on 
December 15, 1982.  The appellant states that his father 
disappeared from his life when he was six months old and 
avoided child support and any responsibilities he had as a 
father.  The appellant further states that he feels these 
benefits are rightfully his and that, in granting him these 
benefits, it would bring him a sense of closure as to his 
search for his father.

Death pension benefits may be paid under certain 
circumstances to an eligible child of the veteran who had the 
requisite wartime service.  38 U.S.C.A. §§ 1541(c), 1542 
(West 1991).  The term "child" is defined as a person who 
is unmarried and (1) who is under the age of 18 years; (2) 
who, before attaining the age of 18 years, became permanently 
incapable of self-support, or (3) who, after attaining the 
age of 18 years and until completion of education or training 
(but not after attaining the age of 23), is pursuing a course 
of instruction at an approved educational institution.  38 
U.S.C.A. § 101(4) (West 1991); 38 C.F.R. § 3.57(a) (1999).  
The Board notes that there is no question that the appellant 
is the veteran's legitimate son.

The evidence reveals that the appellant was born on December 
15, 1964.  He filed his claim for death pension benefits on 
April 24, 1997, at the age of 32 years old.  The appellant 
has not alleged that prior to attaining the age of 18 years 
he became permanently incapable of self-support.  Rather, the 
appellant argues that death pension benefits are warranted 
because of the unjustifiable manner in which the benefits 
were denied at the time of his father's death.  

The Board has reviewed the evidence of record and has 
determined that in view of the statute and the regulation, 38 
U.S.C.A. § 101(4); 38 C.F.R. § 3.57(a), the appellant was not 
a surviving child for VA benefit purposes at the time he 
filed his claim for death pension benefits in April 1997.  At 
that time, the appellant was 32 years old, which is beyond 
the age criteria for characterization as a child such to 
provide standing for his claim for VA benefits.

The appellant has argued that he should have received notice 
of potential benefits at the time of the veteran's death.  
However, the record reflects that the veteran never claimed 
the appellant as a dependent in the various forms he filed 
with VA in conjunction with claims and continuing benefits 
during his lifetime.  The only documentation which showed the 
appellant's existence, was a February 1966 divorce decree.  
The Board does not find that such evidence was sufficient to 
put VA on notice of the appellant's existence and create a 
duty for VA to notify him of potential benefits at the time 
of the veteran's death.

In view of the above, the Board finds that the appellant does 
not have standing to claim death pension benefits.  As the 
disposition of this claim is based on the law, and not on the 
facts of the case, the claim must be denied based on a lack 
of entitlement under the law.  See Sabonis v. Brown, 6 Vet. 
App. 426, 430 (1994).  The Board apologizes that a more 
favorable decision could not be made.


ORDER

The appellant is not a benefits-eligible claimant for 
purposes of entitlement to death pension benefits as the 
veteran's "child", and thus his claim for these benefits is 
denied.



		
	NANCY I. PHILLIPS
	Member, Board of Veterans' Appeals