Citation Nr: 0735543 Decision Date: 11/09/07 Archive Date: 11/26/07 DOCKET NO. 06-01 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to additional Dependency and Indemnity Compensation (DIC) allowance for an adopted child, J.M.M. REPRESENTATION Appellant represented by: Catholic War Veterans of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from February 1961 to May 1986. He died in September 1995. The appellant is his surviving spouse. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2005 decision of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO). The veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in April 2004. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. J.M.M. began living with the veteran and the appellant in June 1995. 2. The veteran died in September 1995. 3. In February 1996, J.M.M.'s natural mother, the veteran's daughter-in-law, executed a Last Will and Testament wherein she appointed the appellant as the guardian of J.M.M. upon her death. 4. J.M.M.'s natural mother died in March 1996; and at that time, the appellant received testamentary guardianship of J.M.M. 5. The information of record indicates that at the time the appellant retained testamentary guardianship of J.M.M., she initiated formal legal proceedings relevant to J.M.M.'s adoption in the State of Michigan, Probate Court of Wayne County, which became final in January 2001. CONCLUSION OF LAW Resolving all reasonable doubt in the appellant's favor, the criteria for entitlement to an additional DIC allowance for the adopted child, J.M.M., are met. 38 U.S.C.A. §§ 101(4), 1310, 1151 (West 2002); 38 C.F.R. §§ 3.5, 3.57 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION There has been a significant change in the law during the pendency of this appeal. The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West Supp. 2001). The legislation has eliminated the well- grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. Given the disposition reached in this case, the Board finds that VA has met its duty to assist the veteran in the development of the claim on appeal under VCAA. Pertinent Law and Regulations Dependency and indemnity compensation (DIC) may be awarded to a surviving child upon the service-connected death of the veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5(a) (2007); see also 38 U.S.C.A. § 1151 (West 2002). Generally, the term "child" means a person who is the legitimate or adopted child of the veteran who is unmarried and who is under the age of 18 years, or; who became permanently incapable of self-support before attaining the age of 18 years, or; who was age 18 or over but not yet age 23 and is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. § 3.57 (2007). Further, 38 C.F.R. § 3.57(c) defines an "adopted child" as a child adopted pursuant to a final decree of adoption, a child adopted pursuant to an unrescinded interlocutory decree of adoption while remaining in the custody of the adopting parent (or parents) during the interlocutory period, and a child who has been placed for adoption under an agreement entered into by the adopting parent (or parents) with any agency authorized under law to so act, unless and until such agreement is terminated, while the child remains in the custody of the adopting parent (or parents) during the period of placement for adoption under such agreement. The term includes, as of the date of death of a veteran, such a child who: (1) Was living in the veteran's household at the time of the veteran's death, and (2) Was adopted by the veteran's spouse under a decree issued within two years after August 25, 1959, or the veteran's death whichever is later, and (3) Was not receiving from an individual other than the veteran or the veteran's spouse, or from a welfare organization which furnishes services or assistance for children, recurring contributions of sufficient size to constitute the major portion of the child's support. See 38 U.S.C.A. § 101(4). 38 C.F.R. § 3.210(c) provides further guidance regarding the definition and criteria for "adopted child." Except as provided in paragraph (c)(1) of this section evidence of relationship will include a copy of the decree of adoption or a copy of the adoptive placement agreement and such other evidence as may be necessary. 38 C.F.R. § 3.210(c)(2) provides that as to a child adopted by the veteran's surviving spouse after the veteran's death, the statement of the adoptive parent or custodian of the child will be accepted in absence of information to the contrary, to show that the child was a member of the veteran's household at the date of the veteran's death and that recurring contributions were not being received for the child's maintenance sufficient to provide for the major portion of the child's support, from any person other than the veteran or surviving spouse or from any public or private welfare organization which furnished services or assistance to child. Analysis In May 2000, pursuant to a Board decision that month, the appellant was awarded DIC under the provisions of 38 U.S.C. § 1151 (West 2002). The appellant is seeking recognition of J.M.M., the son of the veteran's daughter-in-law, as an adopted child for the purpose of receiving an additional DIC allowance. J.M.M.'s birth certificate reflects that he was born in January 1995. Through various written submissions and hearing testimony, the Board notes that J.M.M. began living with the veteran and the appellant in approximately July 1995, when he was six months old. The appellant related that she and the veteran were the sole providers of parental and financial support for J.M.M. She also stated that their daughter-in-law, who had been diagnosed with full blown acquired immunodeficiency syndrome (AIDS), discussed with them her wish that they adopt J.M.M. when she died. In September 1995, the veteran died from a pulmonary embolism, as a consequence of bilateral deep venous thrombosis, due to metastatic adenocarcinoma of the stomach. The approximate interval between onset of the adenocarcinoma and death was noted to be four months. In February 1996, J.M.M.'s natural mother executed a Last Will and Testament wherein she appointed the appellant the guardian of J.M.M. upon her death. The appellant testified that the plan was for her to adopt J.M.M. In March 1996, her daughter-in-law died of the complications of AIDS. At that point, the appellant received guardianship of J.M.M. Also, the information of record indicates that at the time the appellant received guardianship of J.M.M., she initiated formal legal proceedings in the State of Michigan, Probate Court of Wayne County, to adopt J.M.M. that became final in January 2001. Although the evidence of record reflects that the formal legal proceedings to adopt J.M.M. were not final until five and a half years after the veteran's death, the circumstances of this case are sufficient to satisfy the requirements of 38 C.F.R. § 3.57(c). In this regard, the Board finds extremely persuasive the fact that J.M.M.'s natural mother executed a Last Will and Testament, which, upon her death in 1996, effectively granted the appellant the right to exercise parental authority over J.M.M. Similarly, it is equally significant that the court filings, which are relevant to J.M.M's guardianship and adoption, strongly suggest that formal legal proceedings for these same matters were likewise initiated in the Wayne County Probate Court as early as 1996. (See, Petition and Order for Authority to Adopt, listing File No. 96-561757). In fact, the record clearly reflects the appellant's dogged pursuant of her 1151 claim (she apparently filed a tort claim against VA in 1997) and the emotional toll the unfortunate series of events had on her life. As the record shows, only six months after her husband of 37 years died, the appellant had to deal with the death of her daughter-in-law as well as her responsibilities as the sole parental authority for her grandson. As there is at least as much evidence in favor of the appellant's claim as there is against it, the Board finds it reasonable to conclude that the testamentary guardianship executed by J.M.M.'s natural mother, together with the court documents indicating the start of legal proceedings pertinent to J.M.M.'s adoption in 1996, may be accepted for purposes of this appeal as tantamount to an unrescinded interlocutory decree. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. As such, the information of record indicates that these documents were filed within two years after the veteran's death, and that J.M.M. has always remained in the custody of the appellant. Thus, having resolved all reasonable doubt in favor of the appellant, J.M.M. may be recognized as an adopted child for purposes of VA benefits. The appeal is granted. ORDER Entitlement to additional DIC allowance for the adopted child, J.M.M., is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs