Citation Nr: 0809955 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-31 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the veteran's grandchild, B.M.H., may be recognized as the veteran's child for Department of Veterans Affairs (VA) purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nancy Rippel, Counsel INTRODUCTION The veteran served on active duty from November 1952 to March 1959, and from June 1959 to October 1972. He died in April 1990. The appellant is his surviving spouse. This appeal arises before the Board of Veterans' Appeals (Board) from a letter denial rendered in November 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The veteran died in April 1990 due to adenocarcinoma of the lung due to advanced lung cancer. 2. Service connection for the cause of the veteran's death, Dependency and Indemnity Compensation, was granted in a January 1997 rating decision based on presumed Agent Orange exposure in Vietnam during service. 3. In October 2004, the appellant filed a claim to add B.M.H., an adult formerly known as B.M.P., to her award as a dependent and submitted copies of court documents showing that she and the veteran received temporary custody of B.M.H. in February 1987 as his grandparents, and that she adopted him as an adult in October 2004. 4. B.M.H. was born in March 1985, and attained the age of 18 in March 2003. 5. B.M.H. was noted to be a disabled child by the Social Security Administration according to a September 2004 document from that agency. 6. The record does not show that B.M.H. is the biological or step child of the veteran; he was adopted legally by appellant 13 years after the death of the veteran. CONCLUSION OF LAW Entitlement to additional disability compensation benefits for B.M.H. as a dependent child, is not warranted. 38 U.S.C.A. §§ 101(4), 1115(2); 38 C.F.R. § 3.57 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). As discussed in detail below, this case is one in which the law is dispositive of the issues. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Under such circumstances, the VCAA is not applicable. Mason v. Principi, 16 Vet. App. 129, 132 (2002). Further, VA has no duty to assist the veteran in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid him in substantiating his claim. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Regardless, the November 2004 letter denial from the RO did inform the appellant that an award of additional compensation for B.M.H. would require that she furnish evidence that the veteran had legally adopted the child before the age of 18, or evidence that he is a stepchild who acquired that status before the age of 18 and is a member of the veteran's household, or evidence that he is the legitimate or illegitimate child of the veteran, and is unmarried, under the age of 18, or under the age of 23 and pursuing a course of instruction at an approved educational institution. The claim was fully readjudicated in the August 2005 Statement of the Case (Case). The appellant filed a substantive appeal in September 2005. Additional notice was provided in June 2006. The appellant was therefore provided notice of what information and evidence was required to establish entitlement to the benefits sought. Dependency Status A veteran with service connected disability rated at not less than 30 percent shall be entitled to additional compensation for dependents. 38 U.S.C.A. § 1115(2) (West 2002 & West 2005); 38 C.F.R. § 3.4(b)(2) (2007). When, after 1956, any veteran dies from a service-connected or compensable disability, VA shall pay dependency and indemnity compensation (DIC) to that veteran's surviving spouse, children, and parents. 38 U.S.C.A. § 1310(a); 38 C.F.R. § 3.5. The definition of the term "child," as defined for the VA purposes of establishing dependency status, means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household at the time of the veteran's death, or an illegitimate child. In addition, the child must also be someone who: (1) is under the age of 18 years; or (2) before reaching the age of 18 years became permanently incapable of self support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4); 38 C.F.R. § 3.57(a). The appellant claims B.M.H. as the dependent child of the veteran for the purposes of adding him to her award of DIC benefits based on service connection for the cause of the veteran's death. She notes that the veteran and she obtained temporary custody of B.M.H. (formerly known as B.M.P.) in February 1987, prior to his death. She notes that they provided for his support until the veteran's death in April 1990. Court records show that the veteran and appellant, together, gained temporary custody of B.M.H., their grandchild, in February 1987. In August 2002, the parental rights of B.M.H.'s birth mother were terminated. Jurisdiction of the juvenile court terminated at the end of February 2003. The final judgment of grandparent adoption, in which appellant adopted B.M.H., as an adult, was dated in October 2004. The adoptive parent is listed as the appellant only. Appellant also notes that B.M.H. had medical problems over the years including psoriasis, and that she and the veteran had cared for B.M.H. since he was 14 weeks old. Social Security Administration records dated in September 2004 show he was considered a disabled child. In its November 2004 letter denial, the RO explained that, in order to grant dependency status for B.M.H., the appellant needed to submit evidence that B.M.H. was the veteran's biological child, legally adopted child, or stepchild at the time of his death. The appellant's actions are admirable and decent. However, she has not contended, nor has she submitted any evidence establishing that the veteran had legally adopted B.M.H. prior to his death, or that he could otherwise be recognized as the veteran's, adopted or step child. In fact, she has affirmatively established that the adoption occurred after the veteran's death. Absent evidence establishing that B.M.H. was veteran's biological child, legally adopted child, or stepchild at the time of the veteran's death, he simply cannot qualify as a dependent child for VA purposes. The appellant is not entitled to additional disability compensation for P.R.P. as a dependent. 38 U.S.C.A. §§ 101(4), 1115(2); 38 C.F.R. § 3.4(b)(2), 3.57. The law is dispositive of this issue. As a matter of law, there is no entitlement to additional disability compensation for P.R.P. as a dependent child, and the claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The veteran's grandchild, B.M.H., adopted by the appellant after the veteran's death, may not be recognized as the veteran's adopted child for Department of Veterans Affairs (VA) purposes. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs