Citation Nr: 0811517 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-14 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether the veteran's grandchild, P.R.P., may be recognized as the veteran's child for Department of Veterans Affairs (VA) purposes. ATTORNEY FOR THE BOARD Nancy Rippel, Counsel INTRODUCTION The veteran served on active duty from November 1975 to December 1992. 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 Buffalo, New York. This claim was remanded by the Board in March 2005. The action directed by the Board was accomplished, and the claim has been returned to the Board for decision. FINDINGS OF FACT 1. The veteran has been in receipt of VA disability compensation at the 50 percent rate since September 2003. 2. In September 2004, the veteran filed a claim to add P.R.P., a minor child, to his award as a dependent and submitted a copy of her birth certificate showing his daughter as her mother and a court document establishing that he and L.P. were the authorized legal guardians of the minor P.R.P. in November 1992. 3. The record does not show that P.R.P. is the biological, legally adopted, or step child of the veteran. CONCLUSION OF LAW Entitlement to additional disability compensation benefits for P.R.P. as a dependent child, is not warranted. 38 U.S.C.A. §§ 101(4), 1115(2) (West 2002); 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 veteran that an award of additional compensation for J.S. would require that the veteran furnish evidence that he had legally adopted the child before the age of 18, or evidence that P.R.P. is a stepchild who acquired that status before the age of 18 and is a member of the veteran's household, or evidence that she 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. He was informed of the criteria for the claim in February 2005. The claim was remanded by the Board in March 2005 for the issuance of a Statement of the Case (Case). His claim was thereafter readjudicated in a March 2006 Statement of the Case (SOC). The veteran filed a substantive appeal in April 2006. Additional notice was provided in March 2006. These reiterated that the veteran needed to provide objective evidence showing that P.R.P. is the veteran's biological child, was adopted, or is a step-child. The veteran 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). 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 veteran claimed P.R.P. as his dependent child for the purposes of adding her to his award. As proof of his relationship to P.R.P., he provided court documents establishing that, in November 1992, the veteran was awarded guardianship of P.R.P, a minor child. Review of the court's letter of guardianship demonstrates that L.P. was also appointed along with the veteran. Birth certificates reflect that P.R.P.'s biological mother is the veteran's daughter. P.R.P. was born in September 1991. The veteran urges that he has legal custody of P.R.P., he has raised her as his daughter, and he is biologically related to her as her grandfather. He thus considers her his daughter, and believes he meets the requirements to have her as his dependent for purposes of VA compensation. In its November 2004 letter denial, the RO explained that, in order to grant dependency status for P.R.P., the veteran needed to submit evidence that P.R.P. is his biological child, legally adopted child, or stepchild. In January 2005 and March 2005, the veteran responded that he was biologically related to P.R.P., had legal custody of P.R.P. and had provided for her support. He stated he felt no need to adopt P.R.P. The veteran's actions are admirable and decent. However, the veteran has not contended, nor has he submitted any evidence establishing that he has legally adopted P.R.P., or that she could otherwise be recognized as the veteran's, adopted or step child. In fact, he has stated affirmatively he did not adopt her. As to his argument that she should be recognized as the veteran's biological child, the veteran admits he is not her biological father. She is thus not his biological daughter for VA purposes. That they are related through his daughter does not make him her biological father for VA purposes. Absent evidence establishing one of these connections, P.R.P. simply cannot qualify as a dependent child for VA purposes. The veteran 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, P.R.P., may not be recognized as the veteran's adopted child for Department of Veterans Affairs (VA) purposes. ____________________________________________ JOHN Z. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs