BVA9500812 DOCKET NO. 93-08 449 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether the appellant is entitled to VA death pension benefits as a child of the veteran, without consideration of her mother's income. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Board WITNESSES AT HEARING ON APPEAL Appellant and her mother INTRODUCTION The veteran served on active duty from June 1969 to April 1971, and died in April 1986. This matter comes before the Board of Veterans' Appeals on appeal from a decision of August 1992 by the Department of Veterans Affairs (VA) Regional Office, Jackson, Mississippi (RO). CONTENTIONS OF APPELLANT ON APPEAL The appellant in effect contends that her entitlement to VA death pension benefits should be considered without taking into account her mother's income. 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 a preponderance of the evidence is against the appellant's entitlement to VA death pension benefits as a child of the veteran, without consideration of her mother's income. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the originating agency. 2. The appellant was in the legal custody of her mother at the time of her 18th birthday, and it is not shown that her mother has been legally divested of such custody. CONCLUSION OF LAW In determining the appellant's entitlement to VA death pension benefits as a child of the veteran, her mother's income must be taken into account. 38 U.S.C.A. §§ 1541, 1542, 5107 (West 1991); 38 C.F.R. §§ 3.57, 3.271 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, she has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed and no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The appellant essentially contends that a determination of her entitlement to death pension benefits should be made solely on her income as she has not lived with her mother since 1987. Further, she avers that she was never advised on the need to be legally divested from her mother's custody to obtain VA death pension benefits. A review of the record reveals that the appellant's mother claimed that the appellant, who was born on February 7, 1970, was in her custody when she filed a claim for death pension benefits and requested approval for school attendance in May 1989. (The appellant's mother was advised in June 1989 that her claim for death pension benefits had been denied due to excess income.) Claims for death pension benefits as a child of the veteran were received from the appellant in September 1990 and March 1991. The appellant and her mother testified at a personal hearing at the RO in November 1992. The appellant's mother testified that the appellant had not lived with her since 1989. They both agreed that they were not aware of the requirement of counting the mother's income in determining the appellant's entitlement to death pension benefits. The appellant has maintained that she has not been in her mother's custody since the age of 18 when she left home. 38 C.F.R. § 3.57(d)(3), however, clearly states that the person having custody of a child prior to the time the child attains the age of 18 shall be considered to retain custody of the child on and after the child's 18th birthday, unless the person is divested of legal authority. This applies without regard to when a child reaches the age of majority under applicable State law. In this case, it is clear that the appellant was in the custody of her mother at the time she attained age 18. The Board notes that the appellant's mother, when submitting a claim for death pension benfits and requesting approval for school attendance in May 1989 considered the appellant, who was then over 19, to be in her custody. With respect to the appellant's assertion that she was unaware of the necessity to take legal action to remove herself from her mother's custody and thus establish eligibility for VA death pension benefits as a child of the veteran, the Board regrets that she was unable to obtain the correct information. The VA, however, has no duty to notify veterans and their dependents of their possible eligibility for benefits or of the criteria needed to qualify for such benefits. Lyman v. Brown, 5 Vet.App. 194 (1993). Accordingly, the Board finds that her mother's income must be taken into account in determining the appellant's entitlement to VA death pension benefits. 38 U.S.C.A. § 1541, 1542; 38 C.F.R. §§ 3.57, 3.271. Doubt as to any material issue has not been demonstrated. 38 U.S.C.A. § 5107. WAYNE M. BRAEUER 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.