concluding that 70-year-old appellant was ineligible for accrued benefits because he did not satisfy statutory definition of “child” in 38 U.S.C. § 101(4)(A), which excludes anyone over age 23 unless they were “permanently incapable of self-support” before attaining age 18
How later courts described this case
- concluding that 70-year-old appellant was ineligible for accrued benefits because he did not satisfy statutory definition of “child” in 38 U.S.C. § 101(4)(A), which excludes anyone over age 23 unless they were “permanently incapable of self-support” before attaining age 18
- stating that benefits were awarded to the appellant under sections 5121 and 5310
- reviewing a Board decision denying accrued benefits because the appellant had not established eligibility as an accrued-benefits beneficiary
- denying DIC, as a matter of law, to the elderly child of a veteran
Written by the judges who cited it.
The opinion
KRAMER, Chief Judge,
concurring:
I concur in the affirmance of the June 5, 2000, Board of Veterans’ Appeals (Board) decision. I write separately, however, because I believe that it would be helpful to summarize the reasons why the pro se appellant is not entitled to a retroactive award of benefits. First, to the extent that the appellant is seeking a retroactive award of benefits in excess of two years prior to the veteran’s death, the veteran’s disability compensation claim “die[s] with him.” Landicho v. Brown, 7 Vet.App. 42, 52 (1994). Further, because accrued benefits are limited by statute to two years, there is no legal provision for such a general retroactive award to the appellant. See 38 U.S.C. § 5121 (a). Next, to the extent that the appellant is seeking two years’ worth of accrued benefits, because, as the Board found, the appellant is not a child, he does not meet the statutory requirements to receive such an award. Record at 6; see 38 U.S.C. §§ 101 (4)(A) (defining term “child”), 5121(a)(3) (upon death of veteran’s surviving spouse, accrued benefits payable to veteran’s children); 38 C.F.R. § 3.57 (2001) (defining term “child”). Finally, to the extent that the appellant is seeking dependency and indemnity compensation (DIC), although certain survivors could be entitled to DIC because the veteran’s death was service connected, the appellant is not so entitled to DIC because he is not a child. See 38 U.S.C. §§ 1310 (a) (DIC payable, inter alia, to deceased veteran’s children), 1318(a) (DIC payable, inter alia, to deceased veteran’s children). Thus, the appellant is only entitled, under the accrued benefits statute, to the burial expenses that he incurred for his mother. See 38 U.S.C. § 5121 (a)(5).