BVA9502408 
DOCKET NO.  93-07 539     )       DATE
          )
          )

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

THE ISSUE

Entitlement to dependency and indemnity compensation (DIC)
benefits.

ATTORNEY FOR THE BOARD

Alice A. Booher, Counsel

INTRODUCTION

The veteran had active service from June 1943 to November 1945.
According to the death certificate, his death in June 1991 was
due to respiratory failure secondary to severe pneumonia with
hypertensive cardiovascular disease and multiple decubitus
ulcers.  At the time of his death, service connection was in
effect for residuals of a gunshot wound, right thigh involving
Muscle Group XIII; injury to the right common peroneal nerve; and
residuals of a gunshot wound, left thigh, involving Muscle Group
XI, evaluated as 30, 10 and 10 percent disabling, respectively.

This appeal arises from a March 1992 rating decision of the
Department of Veterans Affairs (VA) Manila, Philippines, Regional
Office (RO).

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 preponderance of the evidence does not support the
claimant's appeal for entitlement to Dependency and Indemnity
Compensation (DIC).

FINDINGS OF FACT

1.  The veteran died in June 1991.

2.  The veteran's spouse's claim for DIC benefits was pending
when she died in August 1992.

3.  The veteran's daughter, age 30, is not a child for purposes
of entitlement to DIC benefits nor may she substitute herself as
the appellant in a claim pending at the time of her mother's
death.

CONCLUSION OF LAW

The criteria for an award of dependency and indemnity (DIC)
benefits have not been met.  38 U.S.C.A. §§  1310, 1313, 1314,
5121 (West 1991) ; 38 C.F.R. §§ 3.5, 3.57, 3.152, 3.1000 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant's claim is well-grounded, that is, it is not
inherently implausible.  The facts relevant to the issue on appeal
have been properly developed and the statutory duty of the VA to
assist the appellant in the development of the claim has been
satisfied.  38 U.S.C.A. § 5107(a) (West 1991).

As a threshold matter, one claiming entitlement to VA benefits
must qualify as a claimant by submitting evidence.  [O]ne
claiming entitlement as a dependent of a veteran has the burden
to come forward with preponderating evidence of that dependency
relationship.  When such evidence is submitted, [VA] will then
determine whether the claim is otherwise well-grounded.  "Only if
both elements are met is [VA] obliged to assist the claimant both
in developing relevant facts and in applying the equipoise rule."
O'Neal v. Derwinski, 2 Vet.App. 565, 566 (1992) (quoting
Aguilar v. Derwinski, 2 Vet.App. 21, 23 (1991)).

In this case, prior to her death, the veteran's widow, in
November 1991, had submitted an application for service
connection for the cause of the veteran's death for the purposes
of DIC benefits.  In later correspondence, she specifically
stated that the veteran's service-connected disorders caused his
death.  The claim for service connection for the cause of the
veteran's death was denied in a rating action by the RO in March
1992.  The widow pursued an appeal in a timely fashion.

Before the case was forwarded to the Board, in September 1992,
the veteran's daughter, filed a VA Form 21-4138, to the effect
that she was pursuing the pending claim for the cause of her
father's death for dependency and indemnity compensation (DIC)
purposes "in lieu" of her mother who had died on August [redacted] 1992.
After receiving a certified copy of the mother's death
certificate, the RO certified the case to the Board of Veterans'
Appeals (the Board) in March 1993.

In general, where a veteran with honorable service dies of a
service-connected disability, DIC benefits are payable to such
veteran's surviving spouse, children and parents.  38 U.S.C.A.
§ 1310; 38 C.F.R. § 3.5 (a),(b).  Whenever there is no surviving
spouse of a deceased veteran entitled to DIC, those benefits
shall be paid in equal shares to the children of the deceased
veteran.  38 U.S.C.A. § 1313.  The definition of child, for
purposes of VA law and regulations is:

§ 3.57 Child.

          (a) General. (1) Except as provided in
paragraphs (a)(2) and (3) of this section,
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 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

          (i) Who is under the age of 18 years;
or

          (ii) Who, before reaching the age of
18 years, became permanently incapable of
self-support; or

          (iii) Who, 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.

          (2) For the purposes of determining
entitlement of benefits based on a child's
school attendance, the term child of the
veteran also includes the following
unmarried persons:

          (i) A person who was adopted by the
veteran between the ages of 18 and 23
years.

          (ii) A person who became a stepchild
of the veteran between the ages of 18 and
23 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.

          (3) Subject to the provisions of
paragraphs (c) and (e) of this section, the
term child also includes a person who
became permanently incapable of
self-support before reaching the age of 18
years, who was a member of the veteran's
household at the time he or she became 18
years of age, and who was adopted by the
veteran, regardless of the age of such
person at the time of adoption.

In the case of the death of a surviving spouse of a veteran,
under certain circumstances, benefits may be given to the
children of the deceased veteran.  38 U.S.C.A. § 5121(a);
38 C.F.R. § 3.1000(a).  Had the veteran's daughter been otherwise
eligible as a child of the veteran at the time of her mother's
claim as the veteran's surviving spouse, that claim might have
been convertible, under certain circumstances, into her own claim
for DIC or accrued benefits.  See 38 C.F.R. § 3.152.

A birth certificate is of record showing that the veteran's
legitimate natural-born daughter by his wife, was born July [redacted]
1964.  The veteran died on June [redacted] 1991, when the appellant was
almost 27 years old.  Her mother died slightly more than a year
later.  In this case, not only was the veteran's daughter not
chronologically a "child" (as defined within cited pertinent
regulations) at the time of his death in June 1991; but there is
neither contention nor evidence that she was permanently
incapable of self-support prior to age 18; nor that she otherwise
qualified under the definition of an eligible child of a deceased
veteran.  As she does not meet the threshold criteria necessary
for an award of DIC benefits, her claim must be denied.

ORDER

The claim for DIC benefits is denied.

          RENÉE M. PELLETIER
          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.