Lynch: DIC for Now-Adult Children

Lynch v. Wilkie, Case Number 16-0541, decided October 23, 2018 address a situation where an application for DIC was submitted while the veteran’s children were minors but the application did not list them. 

This case involves a claim for DIC by a veteran’s parents.  The application did not list the veteran’s children on it.  They sought DIC benefits years later after they reached their majority.

First, the court had to deal with whether the now adult children are nonetheless potentially eligible DIC claimants as purported children.  The court answered affirmatively and secondly had to address whether the record in the case reasonably raised the theory that there was a pending claim filed on the children’s behalf.  Id. at *4-5.

First, the Court determined:

Because the regulation implementing the statute is a permissible construction of the law

Congress enacted concerning the scheme for effective dates, as well as with this Court's precedent concerning death benefits, the Court concludes that the appropriate date on which to assess whether a person qualifies as a "child" for the purpose of determining eligibility for DIC benefits is governed by 38 C.F.R. § 3.400(c)(4) and depends on when the claim was filed. For claims filed within 1 year after the date entitlement arose, whether a claimant is a "child" should be assessed on the date entitlement arose. For claims filed more than 1 year after the date entitlement arose, whether a claimant is a "child" should be assessed on the date the claim was received.

Id. at *7-8.

The Court then decided:

Applying the above analysis to the facts of this case, if a claim was filed on the appellants' behalf within 1 year of the veteran's death, the date of death is the appropriate date upon which to assess whether the appellants were "children," and their present age is not a bar to benefits.  Otherwise, the appropriate "child" assessment date is the date the claim was received. Therefore, in this case, whether the appellants are eligible claimants depends on whether a claim was filed on their behalf within 1 year of the veteran's death or at some other point while they were still "children."

Id. at *8.

The Court then turned to whether the record reasonably raised a theory of entitlement.  IT noted: “The appellants argue that the record reasonably raised the theory that the 1969 DIC application filed by the veteran's parents was an incomplete, defective, or informal claim for benefits filed on their behalf that, when combined with the appellants' formal 2010 DIC claims, renders the claim filed in 1969 – when they were "children" and eligible to receive DIC – pending.” Id. at *8-9.  The children had pointed to arguments in the NOD, Form 9, and at oral argument essentially that the initial application was incomplete or incorrectly completed.  Id. at *9.

The Court commented, “While the evidence cited may suggest that the 1969 application was not accurately completed, it does not necessarily follow that identifying inaccuracies in the 1969 application submitted by the veteran's parents reasonably raises the theory that the application should be considered filed on behalf of the appellants. Indeed, the same evidence cited above shows that the appellants consistently asserted below that the veteran's parents intentionally sought to deny the appellants the opportunity to seek DIC – in other words, that the 1969 DIC claim was not a claim on the appellants' behalf.”  Id. at *9.  The Court seemed to focus on statements by a non-attorney representative during a hearing that due to the unusual family situation, the benefits were not sought on their behalf.  Id. at *9.  “Thus, even under the most sympathetic of readings, there is no suggestion in the cited evidence that the 1969 claim filed by the veteran's parents, whether considered on its own or in conjunction with the appellants' 2010 claims, should be construed as a claim filed on behalf of  the appellants when they were "children" as defined by 38 U.S.C. § 101(4)(A).  Therefore, this theory was not reasonably raised before the Board.”  Id. at *10.

The Court did leave open the door that if there had been evidence in the record that the an application for survivor benefits from SSA had been made it might have resulted in another decision as such an application might have triggered a formal claim for DIC benefits at the time.  Id. at *10. 

Judge Allen wrote concurring in much of the analysis but dissenting in the conclusion.  He wrote agreeing with the framework of when to evaluate a child’s status for the receipt of DIC.  But, wrote that he thought “there was more than enough evidence in the record to trigger the Board's obligation to consider the appellants' theory of entitlement.”  Id. at *12.

He stated that the question is whether the Board was on notice that it should explore the general theory of entitlement (i.e, that there was something unusual about the grandparent’s application in 1969 for DIC benefits that should have allowed the VA to treat the application as an application on behalf of the children).  Id. at *12-13.  Judge Allen also pointed to the NOD, Form 9, and Board hearing testimony.  The confronted the majorities reliance on the non-attorney representative’s statement that the benefits were sought for the grandparents not the children and stated:

This statement is certainly correct as a matter of fact. But appellants' theory is not premised on an argument that—in reality—their grandparents submitted a formal application for them. The grandparents apparently were acting in ways at odds with their granddaughters, appellants Lynch and Martinez. Thus, I do not rely greatly on this statement, from a non-lawyer representative, as foreclosing the more general arguments

concerning the 1969 application. This is even more so because of the other assertions  about the 1969 application in the record, including the subsequent testimony at the Board hearing.

Id. at *14.

He then pivots and explains the children argued the initial application was missing a critical element (the children) and as consequence of that missing element, the their more recent filings should related back to the 1969 application.  He then explained whether this is a winning argument is unimportant, for the Board had an obligation to consider and address the argument.

This decision results in a very difficult and highlights the unfairness of the system.  A DIC application that did not list a child could foreclose DIC benefits for that child.  However, it does highlight a possible ability to demonstrate a SSA survivor benefit application should count as a benefit.

The decision was by Judge Schoelen and joined in by Judge Meredith. Judge Allen concurred and dissented in part.

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