Citation Nr: 0909908 Decision Date: 03/17/09 Archive Date: 03/26/09 DOCKET NO. 02-12 766A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim seeking recognition of the appellant by the Department of Veterans Affairs (VA) as the Veteran's "child" for the purpose of establishing his entitlement to helpless child death benefits. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esquire WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The Veteran served on active duty from February 1940 until his death as a prisoner of war in Japan in November 1942. The appellant is the child of the Veteran's common-law wife, was born in June 1942, and seeks to be recognized as the "child" of the Veteran and also as a "helpless child" for the purposes of receiving VA dependency and indemnity compensation (DIC) benefits. This matter initially came before the Board on appeal from an administrative determination by the Baltimore, Maryland VA Regional Office (RO) in July 2001. Following an April 2003 Board hearing and a March 2004 remand, the Board denied the appeal in a January 2006 decision. The appellant appealed this denial to the United States Court of Appeals for Veterans Claims (Court), which, in an April 2008 memorandum decision, vacated the Board's January 2006 decision and remanded the matter back to the Board. The Board notes that the Veterans Law Judge who signed the January 2006 Board decision is no longer employed by the Board. In December 2008, the Board notified the appellant of his right to an additional Board hearing. See 38 C.F.R. § 20.717 (2008). In January 2006, however, the appellant's representative notified the Board that he was declining to have another hearing and instead wanted the Board to proceed with his appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board previously denied the appellant's claim to be recognized as the Veteran's "child" in a decision of September 1985. The Board noted that there was no objective evidence that the Veteran knew of the appellant's existence or accepted him as a member of his household. The governing law and regulations provide that the term "child" of the veteran 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 or was a member of the veteran's household at the time of the veteran's death, or an illegitimate child; and (i) Who is under the age of 18 years; or (ii) Who, before reaching the age of 18 years, became permanently incapable of self- support; or (iii), Who, 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 educational institution approved by the Department of Veterans Affairs. 38 C.F.R. § 3.57(a) (2008). The term "stepchild" means a legitimate or illegitimate child of the veteran's spouse. 38 C.F.R. § 3.57(b) (2008). Evidence of relationship of a stepchild will consist of proffer of birth, evidence of the marriage of the veteran to the natural parent of the child, and evidence that the child is a member of the veteran's household, or was a member of the veteran's household at the date of the veteran's death. 38 C.F.R. § 3.210(d) (2008). It is uncontroverted that the appellant was the illegitimate child of the Veteran's common law spouse. Thus he may be considered to be the Veteran's stepchild. However, to meet the definition of "child" for VA benefits, he must establish that he "was a member of the Veteran's household at the date of the Veteran's death." The definition of "household" is commonly understood to mean a domestic establishment including members of a family and others living under the same roof. On this point, there was conflicting evidence at the time the Board entered its 1985 decision. In connection with her claim for death benefits, the appellant's mother asserted in a deposition in April 1947 that she and the Veteran lived together from the time of their marriage until he entered military service and that he had not made an allotment for her while he was in the military. In her deposition, and other claims for VA benefits and National Service Life Insurance proceeds, she did not mention the appellant or claim him as the veteran's child. She specifically denied ever living with another man. A deposition provided by the Veteran's sister was to the effect that he and the appellant's mother had separated prior to the Veteran's entry onto active duty. M.M.G., a landlady who rented rooms to the appellant's mother during the period from August 1942 until December 1943, stated that the appellant's mother held herself out as being the wife of A., identified as the appellant's biological father. According to M.M.G., A. visited the appellant's mother regularly and paid her weekly rent. Prior to the January 2006 Board decision, in March 2004, the appellant was furnished with a notice letter pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). In the April 2008 memorandum decision, however, the Court found that the March 2004 VCAA letter was deficient, as it was not apparent from the letter what evidence should be submitted by the appellant to establish that he was a member of the Veteran's household at the time of death. While the letter cited to "documents, statements from lay persons, medical reports, and other similar evidence," the Court found this direction to be overly broad, misleading, and confusing and noted the appellant's response in submitting "irrelevant evidence." The Court further determined that VA had not demonstrated that this notice error did not result in prejudice to the appellant. It is thus readily apparent that further corrective notice, pursuant to the VCAA, must be provided to the appellant prior to a final Board adjudication on this matter. Such action must be taken on remand. 38 C.F.R. § 19.9 (2008). Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the appellant explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding the claim on appeal. This letter must inform the appellant about the information and evidence that is necessary to substantiate the claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the appellant. It is essential that this letter contain very specific information about the precise types of evidence that the appellant may furnish in support of his claim which would establish that he was a member of the Veteran's household at the time of the Veteran's death. The types of evidence that must be suggested in the letter include: (1) a signed acknowledgment from the Veteran recognizing the appellant as his stepchild; (2) a judicial decree ordering child support; (3) any contemporaneous evidence, such as diaries or letters, indicating acknowledgment of the appellant's status; (4) statements from third parties who knew that the Veteran accepted the appellant as his stepchild; (5) statements from third parties, such as relatives, neighbors, clergy, shopkeepers, government officials, family friends or others in the community based on personal knowledge which would tend to support the appellant's claim that he was a member of the Veteran's household at the time of his death; and (6) any other information from the service department or public records (i.e., schools, welfare agencies) indicating that the appellant was a member of the Veteran's household. Moreover, the appellant should be informed of his continuing right to provide his own statements or testimony in support of his claim, and he should be allowed a reasonable period of time in which to respond. 2. After completion of the above development, the appellant's claim should be readjudicated. If the determination remains adverse, the appellant and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. The appellant has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2008).