**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

No. 02-754

[Mamerto D. Valiao, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided August 15, 2003 )

*Mamerto D. Valiao*, *pro se*.

*Tim S. McClain*, General Counsel; *R. Randall Campbell*, Assistant
General Counsel; *Brian B. Rippel*, Deputy Assistant General Counsel;
and *Kenneth A. Walsh*, all of Washington, D.C., were on the pleading
for the appellee.

Before KRAMER, *Chief Judge*, and IVERS and STEINBERG, *Judges*.

IVERS, *Judge*: The pro se appellant appeals a March 13, 2002 decision
by the Board of Veterans\' Appeals (Board or BVA) in which the Board
denied entitlement to dependency and indemnity compensation (DIC). The
appellant has filed an informal brief, and the Secretary has filed a
motion for summary affirmance. For the reasons set forth below, the
Court will affirm the Board decision.

**I. FACTS**

The appellant is the brother of a deceased veteran who had recognized
service in the Philippine Army from December 1941 until his death in
August 1942. Record (R.) at 2, 8, 11. At the time of his death, the
veteran was survived by his mother and the appellant; his father died in
1942, but the Court notes that, from the record on appeal (ROA), it is
unclear whether the death of the veteran\'s father occurred before or
after the veteran\'s death. *Compare* R. at 12 *with* R. at 23. The
veteran\'s mother passed away in 1948. R. at 23. There is no evidence in
the record that the veteran\'s mother filed for VA death benefits.

In February 2001, the appellant filed an application for DIC \"as the
surviving brother of the \[veteran\].\" R. at 20-24. The appellant
contended that he was entitled to DIC benefits because the veteran\'s
parents did not file a claim for benefits during their lifetimes. The
appellant argued that his parents\' entitlement to benefits passed to
him after their deaths. R. at 23.

In March 2001, a VA regional office (RO) denied the appellant\'s claim
on the ground that, as the brother of the deceased veteran, he had no
legal entitlement to compensation. R. at 26. The appellant subsequently
filed a Notice of Disagreement (NOD) in which he reiterated his
arguments for entitlement to DIC. R. at 28. The RO issued a Statement of
the Case (SOC) as to its denial of benefits. R. at 31-34. Subsequently,
the appellant filed a Substantive Appeal and further argued his
entitlement to DIC on the grounds that his parents never \"enjoyed such
benefits\" and that, \"as . . . the brother . . . of the late
\[veteran\],\" he had the right to pursue his parents\' claim. R. at 36.

In its March 2002 decision, the Board concluded that, as a matter of
law, the appellant was not eligible to receive DIC benefits based on the
plain language of 38 U.S.C. § 101(5) and (14) and 38 C.F.R. § 3.5(a)
(2002). R. at 3-4. The Board reasoned that, because DIC awards are
limited to parents, surviving spouses, and dependent children of a
deceased veteran whose death was service connected, the appellant was
ineligible to receive DIC due to his status as the brother of the
veteran. R. at 3-4. With regard to the appellant\'s argument that he was
entitled to DIC because his parents never received such benefits, the
Board noted that DIC awards are discontinued at the death of a person
entitled to receive such benefits. R. at 4. The Board also found that
the RO had provided all required notice and obtained all relevant
evidence. R. at 2. With regard to VA\'s compliance with the notice
provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, § 3, 114 Stat. 2096, 2096-97 (2000) (VCAA) (codified at 38
U.S.C. §§ 5103-5103A), the Board stated:

> VA has a duty to notify a claimant . . . of any information and
> evidence needed to substantiate and complete a claim . . . \[In this
> case\], the discussions in the RO\'s decision and in the \[SOC\]
> adequately informed the appellant and his \[then-\]representative of
> the information and evidence need to substantiate \[his\] claim and
> complied with VA\'s notification requirements . . . .
>
> The Board concludes that the RO has complied with, or exceeded, the
> VCAA mandated dut\[y\] to notify . . . .

R. at 2-3.

**II. ANALYSIS**

Dependency and indemnity compensation is \"a monthly payment made by the
Secretary to a surviving spouse, child, or parent . . . pursuant to the
election of a surviving spouse, child, or parent in the case of a
\[service-connected\] death occurring before January 1, 1957.\" 38
U.S.C. § 101(14) (2002); 38 C.F.R. § 3.5(a) (2002). Individuals who are
not included in section 101(14) but who \"stood in the relationship of a
parent to a veteran\" may become eligible for DIC under certain
specified circumstances 38 U.S.C. § 101(5); 38 C.F.R. § 3.59 (2002). The
appellant does not claim to have acted as a parent and bases his
entitlement theory on the assertion that, as his parents\' next of kin,
he has \"inherited\" their unclaimed DIC entitlement. R. at 23, 28, 36.
The Secretary argues that the Court should affirm the Board\'s decision
on the ground that, as a matter of law, the appellant is not entitled to
DIC because he does not meet the criteria of section 101(14).
Secretary\'s Motion (Mot.) at 3. The Court agrees.

The meaning of 38 U.S.C. § 101(14) is unambiguous and authoritatively
addresses the issue before the Court: The appellant, as the brother of
the veteran, is not entitled to DIC. *See Sabonis v. Brown*, 6 Vet.App.
426, 429 (1994) (stating that plain meaning of language of statute must
be given effect unless it would lead to absurd result); *see also Burris
v. Principi*, 15 Vet.App. 348 (2001) (denying DIC, as a matter of law,
to the elderly child of a veteran). The Board also properly concluded
that DIC entitlement stemming from the veteran\'s service terminated at
the death of his parents. *See* 38 U.S.C. § 5112(b)(1) (2002); 38 C.F.R.
§ 3.500(g) (2002).

In its decision, the Board discussed the applicability of the VCAA and
concluded that the RO had met or exceeded the expanded notice
requirements of the VCAA. The Secretary contends that, \"\[e\]ven if the
Court . . . find\[s\] that VA did not fully comply with the VCAA . . . ,
there is no amount of notice . . . that could change the fact that
\[the\] Appellant does not qualify for DIC\" and the question before the
Board, and the Court, is a matter of law where the facts are not in
dispute. Secretary\'s Mot. at 3, *see also Sabonis, supra*. The
Secretary\'s argument is persuasive.

Section 5103(a) of title 38 of the U.S. Code requires that, \"\[u\]pon
receipt of a complete or substantially complete application, the
Secretary shall notify the claimant . . . of any information, and any
medical or lay evidence, not previously provided to the Secretary that
is necessary to substantiate the claim\" and \"which portion of \[the\]
information and evidence, if any, is to be provided by the claimant and
which portion, if any, the Secretary . . . will attempt to obtain on
behalf of the claimant.\" 38 U.S.C. § 5103(a) (2002); *see* 38 C.F.R.
§ 3.159(b) (2002).

In this case, the appellant triggered the Secretary\'s VCAA-expanded
duties with the submission of his completed application for DIC. R. at
20-24. However, the Board erred by failing to adequately discuss the
amended duty to notify. Specifically, the Board failed to discuss the
requirement that VA must indicate which portion of any information or
evidence necessary to substantiate the appellant\'s claim is to be
provided by each party. The Board also failed to discuss whether any
document in the record, including the RO decision and SOC, satisfied
that requirement. R. at 2-3; *see Charles v. Principi*, 16 Vet.App. 370,
373-74 (2002); *cf. Quartuccio v. Principi*, 16 Vet.App. 183, 187
(2002). Nevertheless, the Board\'s error concerning notice must be
considered nonprejudicial because the appellant\'s averment that he was
the brother of the deceased veteran was uniquely within the appellant\'s
knowledge, and under 38 U.S.C. § 101(14) the appellant is ineligible for
DIC as a matter of law on the basis of a sibling relationship with the
veteran. 38 U.S.C. § 7261(b)(2) (2002) (as amended by the Veterans
Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832).
Where the facts averred by a claimant cannot conceivably result in any
disposition of the appeal other than affirmance of the Board decision,
the case should not be remanded for development that could not possibly
change the outcome of the decision. The failure to carry out such
required development under those circumstances is nonprejudicial error
under section 7261(b)(2). *Id.* (in conducting review of BVA decision,
the Court shall take due account of the rule of prejudicial error); *cf.
Soyini v. Derwinski*, 1 Vet.App. 540, 546 (1991) (stating \"strict
adherence \[to the law\] does not dictate an unquestioning, blind
adherence in the face of overwhelming evidence in support of the result
in a particular case. Such adherence would result in this Court\'s
unnecessarily imposing additional burdens on the BVA and \[the
Secretary\] with no benefit flowing to the veteran\").

**III. CONCLUSION**

Upon consideration of the foregoing, the March 13, 2002, decision of the
Board is AFFIRMED.