BVA9500186 DOCKET NO. 93-02 878 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to dependency and indemnity compensation or death pension, to include the issue of whether the appellant is a proper claimant in this action. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Sherman, Counsel INTRODUCTION The veteran had military service during World War II. He died in June 1978. The appellant is an adult son of the veteran. This appeal arises from a December 1991 rating decision of the Denver, Colorado, regional office (RO) denying a claim for dependency and indemnity compensation (DIC) or death pension. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO misconstrued his claim and that he is entitled to service connected disability compensation that would have been payable to his father (the veteran) if his father had been adjudicated service connected before his death. He further contends that the veteran was exposed to mustard gas during his service and that the veteran's death was a result of that exposure. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has no status as a claimant. FINDINGS OF FACT 1. The appellant is the son of the veteran. 2. The appellant was born on November [redacted] 1958. 3. The veteran died on June [redacted] 1978. 4. At the time of the veteran's death, the appellant was over the age of 18 years. 5. The appellant has submitted no evidence that he became permanently incapable of self-support before attaining the age of 18 years, and he has submitted no evidence that he pursued a course of instruction at an approved educational institution between the date of death of the veteran and the time the appellant attained the age of 23 years. CONCLUSION OF LAW The appellant is not a proper claimant in this action. 38 U.S.C.A. §§ 101(4)(A), 1310, 1318, 1542, 5101(b)(1), 5107(a), 5121 (West 1991); 38 C.F.R. § 3.57 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a son of the veteran, who died on June [redacted] 1978. The veteran was in receipt of non-service connected pension at the time of his death. The appellant filed a claim in July 1991 for DIC or death pension. A claim for DIC is to be considered a claim for death pension and accrued benefits. 38 U.S.C.A. § 5101(b)(1) (West 1991). The appellant submitted statements in which he contended that the veteran was exposed to mustard gas during his military service and that the veteran died of the effects of exposure to mustard gas. He advised that he was applying for disability benefits to which his father should have been entitled. In a rating decision of December 1991, the RO denied the claim for DIC or death benefits on the basis that he was not a proper claimant. The appellant filed a Notice of Disagreement in which he alleged that the qualifications for receipt of DIC or death pension cited by the RO had no relevance to his claim, because he was seeking the award of compensatory payments that should have gone to his father during his father's lifetime. In addition to providing a Statement of the Case, the RO sent a separate letter to the appellant explaining what would be needed in order to establish basic eligibility to claim benefits based upon the veteran's death. The appellant's VA Form 1-9, substantive appeal, repeated his assertion that his claim was for his father's entitlement to compensatory disability and that he could prove that his father's death was a result of exposure to mustard gas during service. He stated that he was suing for his father's entitlement as the oldest son and heir. A claim for service connected disability compensation does not survive the veteran's death. Vda. de Landicho v. Brown, 7 Vet.App. 42 at 47 (1994). Therefore, the appellant has no basis on which to seek to recover service connected disability compensation that he feels the veteran should have been entitled to receive during his lifetime. An eligible surviving spouse or child may be entitled to dependency and indemnity compensation or death pension in the event of a veteran's service-connected death or death while rated 100 percent disabled. 38 U.S.C.A. §§ 1310, 1318 (West 1991). The U.S. Court of Veterans Appeals (Court) has held that "[i]t is only in the accrued-benefits provisions in [38 U.S.C.A.] section 5121 that Congress has set forth a procedure for a qualified survivor to carry on, to the limited extent provided for therein, a deceased veteran's claim for VA benefits by submitting an application for accrued benefits within one year after the veteran's death." Vda. de Landicho, 7 Vet.App. at 47. The veteran having died in 1978, and the appellant having filed his claim in 1991, there can be no claim for accrued benefits, even if the appellant were a "qualified survivor." Dependency and indemnity compensation under 38 U.S.C.A. §§ 1310 and 1318 and death pension under 38 U.S.C.A. § 1542 all require a specific relationship with the veteran in order to be eligible to make a claim for benefits. The appellant in this case is claiming benefits on the basis of his status as a child of the veteran. Although the appellant is certainly a son of the veteran, that is not dispositive of whether he is eligible to claim benefits. The term "child," for purposes of Title 38 of the United States Code, is specifically defined. For purposes of determining eligibility as a claimant under Title 38, a child must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A) (West 1991); 38 C.F.R. § 3.57(a)(1) (1993). A person claiming benefits under laws administered by the Secretary of Veterans Affairs (Secretary) must achieve the status of claimant before an obligation arises to determine whether a claim is well grounded under 38 U.S.C.A. § 5107(a) (West 1991). Aguilar v. Derwinski, 2. Vet.App. 21, 23 (1991). A person who does not attain the status of claimant has not submitted a claim. Sarmiento v. Brown, 93-1013 (U.S. Vet. App. Aug. 10, 1994). In order to achieve the status of claimant, the appellant must present evidence that he is a child of the veteran as defined in law and regulation. It is clear on the basis of evidence in the file that the appellant was the son of the veteran and that he was born on November [redacted] 1958. Therefore, at the time of the veteran's death in 1978, the appellant was over the age of 18. In order to establish the status to make a claim for benefits based upon the veteran's death, the appellant must present evidence that he became permanently incapable of self support before attaining the age of 18, or that, between the ages of 18 and 23, he was pursuing a course of instruction at an approved educational institution. The appellant has been notified repeatedly that he must submit such evidence, and the appellant has failed to produce any evidence that might support a finding that he is an eligible claimant. In fact, the appellant has continued to maintain that evidence of such eligibility has no bearing on his claim. The appellant has clearly not presented any evidence that he is a child of the veteran within the meaning of the law governing veterans' benefits, and he does not have the status required to pursue a claim. Thus, it is unnecessary to discuss the issue of entitlement to dependency and indemnity compensation or death pension. ORDER No evidence of status as a claimant having been presented, the appellant's claim is hereby dismissed. I. S. SHERMAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.