Citation Nr: 1126876	
Decision Date: 07/19/11    Archive Date: 07/29/11

DOCKET NO.  10-41 984	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, 
the Republic of the Philippines


THE ISSUE

Legal entitlement to Dependents' Educational Assistance (DEA) for CC and LC, claimed as the adopted children of the Veteran and the Appellant.  


ATTORNEY FOR THE BOARD

Debbie A. Breitbeil, Counsel



INTRODUCTION

The Veteran's service included recognized Guerilla Service from November 1943 to February 1945 and regular Philippine Army service from February 1945 to February 1946.  He died in October 1999, and the Appellant is his surviving spouse.  She claims that CC and LC, in her custody, are her and the Veteran's adopted children.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in January 2009 and October 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  In a March 2007 rating decision, the RO granted Dependents' Educational Assistance (DEA) benefits.  

2.  In May 2008, the Appellant filed a claim for DEA on behalf of CC and LC in her custody; in administrative decisions in January 2009 and October 2009, the RO denied the Appellant's claim for DEA for CC and LC.

3.  The evidence does not demonstrate that CC and LC are the legally adopted children of the Veteran and the Appellant.  



CONCLUSION OF LAW

The criteria for recognition of CC and LC as the adopted children of the Veteran and the Appellant for the purpose of receiving DEA have not been met.  38 U.S.C.A. § 101(4) (West 2002); 38 C.F.R. § 3.57 (2010).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are:  (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006).

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  


The RO provided pre- and post- adjudication VCAA notice by letters, dated in September 2008 and February 2009.  The notice included the type of evidence needed to substantiate the DEA claim on behalf of CC and LC as children of the Veteran, which initially required that there be evidence that CC and LC were legally adopted children at the time of the Veteran's death.  She was also provided a VA pamphlet on VA's DEA program.  

The Appellant was notified that VA would help her in getting evidence that would allow it to make a decision on the claim but that it was necessary that she furnish certain documentation and answer certain questions.  This included providing copies of the "original" and "amended" birth certificates for CC and LC (i.e., certified copies of the public record of birth containing, among other things, the names of the natural and adopting parents and the seal and signature of the custodian of such records), a certified copy of the adoption decree (the authenticity of which must be attested to by the public custodian of the record, bearing his signature and seal), a copy of the social welfare report (child study report and home study report), copies of the petition and all exhibits presented to the court, and a statement as to whether or not CC and LC were members of the Veteran's household at the time of his death.  Further, the Appellant was to answer a series of questions concerning the daily care, custody, and financial support of CC and LC.

As for the content of the VCAA notice, the document substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim, except for the provisions for an effective date and for the degree of disability assignable).

Although the Appellant has not been provided notice of the provisions for an effective date and for the degree of disability assignable, as the claim is denied, no effective date or disability rating can be assigned as a matter of law.  The failure to provide the notice with respect to these elements is harmless error.

As the February 2009 VCAA notice came after the initial adjudication in January 2009, the timing of the notice did not comply with the requirement that the notice must precede the adjudication.  The procedural defect was cured as after the RO provided content-complying VCAA notice, the claim was readjudicated in October 2009 and again in August 2010 by a statement of the case.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.).

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The Appellant was afforded the opportunity to testify at a personal hearing, but she declined a hearing.  The RO has received from the Appellant various official records from Philippine authorities regarding the Veteran's death, the marriage of the Veteran and the Appellant, and the birth certificates of CC and LC establishing that they were not the natural children of the Veteran and the Appellant.  The Appellant has also furnished statements relative to adopting CC and LC and to their daily care, custody, and financial support.

VA has not conducted medical inquiry in an effort to substantiate the claim under 38 U.S.C.A. § 5103A(d), but further development in this regard is not required.  The inquiry to be addressed in this case is of a legal nature and not a medical one.  It does not involve a claim for disability compensation, where a medical examination or medical opinion may be necessary to decide the claim.  See DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008).  

As the Appellant has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Appellant in developing the facts pertinent to the claim is required to comply with the duty to assist.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Legal Criteria

For the purposes of educational assistance under 38 U.S.C.A. Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met:  (1) The veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability.  38 U.S.C.A. §§ 3501, 3510 (West 2002); 38 C.F.R. §§ 3.807(a), 21.3021 (2010).

The definition of the term "child," as defined for the purpose 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 be someone who: (1) is under the age of 18 years; (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).

Governing law provides that for children adopted under foreign law, a person shall not be considered to be a legally adopted child of a living veteran unless all of the following conditions are met:  (i) The person was less than 18 years of age at the time of adoption.  (ii) The person is receiving one-half or more of the person's support from the veteran.  (iii) The person is not in the custody of the person's natural parent unless the natural parent is the veteran's spouse.  (iv) The person is residing with the veteran (or in the case of divorce following adoption, with the divorced spouse who is also a natural or adoptive parent) except for periods during which the person is residing apart from the veteran for purposes of full-time attendance at an educational institution or during which the person or the veteran is confined in a hospital, nursing home, other health-care facility, or other institution.  38 C.F.R. § 3.57(e)(2).

Further, for children adopted under foreign law, a person shall not be considered to be a legally adopted child of a veteran as of the date of the veteran's death and thereafter unless one of the following conditions is met:  (i) The veteran was entitled to and was receiving for the person a dependent's allowance or similar monetary benefit at any time within the 1-year period immediately preceding the veteran's death; or (ii) the person met the requirements of paragraph (e)(2) of this section for a period of at least 1 year prior ot the veteran's death.  38 C.F.R. § 3.57(e)(3).

Facts

The Veteran married the Appellant in July 1954, and he died in October 1999.  At the time of death, the Veteran did not have an adjudicated service-connected disability, and he was not in receipt of any VA monetary benefits.  

In December 2006, the Appellant filed a VA application for dependency and indemnity compensation, death pension, and accrued benefits by a surving spouse or child.  
In the application, the Appellant indicated that she and the Veteran had been married only to each other, without any prior marriages.  She did not indicate any response to the question of whether any child was born to her and the Veteran, and in a section about the unmarried children of the Veteran she indicated "none" to the questions of whether there was any biological child, adopted child, stepchild, or schoolchild (18-23 years old) of the Veteran.

In a March 2007 rating decision, the RO granted service connection for the cause of the Veteran's death and determined that basic eligibility to DEA under 38 U.S.C.A. Chapter 35 was granted.    

In May 2008, the Appellant filed a claim for DEA on behalf of CC and LC in her custody.  She stated that CC and LC were her stepdaughters.  She indicated in applications for survivors' and dependents' educational assistance that C was a child of the Veteran who was born in March 1991, and that L was also a child of the Veteran and was born in September 1992.  

In a July 2008 letter, the Appellant requested the RO to send her a VA pamphlet regarding the educational benefits under the survivors' and dependents' educational assistance program.  In September 2008, the RO sent her the pamphlet and also requested that before further action may be taken on her claim she needed to submit certain evidence, namely, copies of the children's birth certificates, a copy of the marriage certificate of the Veteran and the children's other parent, and a statement as to whether or not the children were members of the Veteran's household at the time of his death.  

In November 2008, the Appellant submitted various documents.  She submitted birth certificates for CC and LC, which showed that the names of the father and mother were different than those of the Veteran and the Appellant (whose names do not appear at all on the documents).  

The Appellant submitted a copy of a "marriage contract" between the Veteran and herself and a copy of a "marriage contract" between the father and the mother listed on the birth certificates of CC and LC.  The Appellant also provided a notarized certification in which she swore that CC and LC were household members of the Veteran at the time of his death.  

In a January 2009 decision, the RO determined that no further action could be taken on the Appellant's claim for DEA for CC and LC, because they were not shown to be the Veteran's biological children (and hence not her stepchildren, as she claimed) as their birth certificates indicated names of parents that were other than the Veteran.  

The Appellant responded in a statement in January 2009 that she wished to clarify that CC and LC were not "stepchildren" as she had originally stated but that they were her and the Veteran's adopted children.  She enclosed a copy of a document, titled "Joint Affidavit of Adoption," which was signed by the Veteran, the Appellant, and the mother and father listed as the biological parents on the birth certificates of CC and LC.  The document was dated in October 1994, and evidently a copy was made and notarized by a notary public in May 2008.  The document indicates that the biological parents agree to allow CC (3 years of age) and LC (2 years of age) to be adopted by the Veteran and the Appellant, who will support, clothe, send to school, and teach the children, but agree that their biological children will continue to recognize them as their "true parent."  The document also states that the Veteran and the Appellant will treat the children as their own dependents, to "love and to cherish through their lives."  

In a February 2009 letter, the RO requested additional evidence from the Appellant, to include copies of the "original" and "amended" birth certificates for CC and LC, which should be certified copies of the public record of birth containing, among other things, the names of the natural and adopting parents and the seal and signature of the custodian of such records; a certified copy of the adoption decree, the authenticity of which must be attested to by the public custodian of the record, bearing his signature and seal; a copy of the social welfare report (child study report and home study report); copies of the petition and all exhibits presented to the court; and copies of the consent to adoption of all the Appellant's natural children.  Further, the RO requested the Appellant answer a series of questions concerning the daily care, custody, and financial support of CC and LC.  

In May 2009, the RO received the Appellant's response, to include copies of the birth certificates of CC and LC that she had previously submitted.  In one statement, the Appellant indicated that there were no amended birth certificates to send, as there was "nothing to amend," and that the previously submitted copy of a joint affidavit of adoption was "duly notarized and legally effective."  As to copies of the social welfare report and copies of the petition and all exhibits presented to the court, the Appellant stated that it was "not applicable."  She also noted that she did not have any natural children.  In another statement, the Appellant indicated that she was mentally capable of exercising parental care over CC and LC, that she had constructive custody over them, and that both she and the natural parents of CC and LC helped to provide parental and financial support for the children.  

In an October 2009 determination, the RO denied DEA for CC and LC on the basis that certain requested evidence was never produced by the Appellant, namely, a certified and amended copy of the public record of birth containing, among other things, names of the natural and adopting parents and the seal and signature of the custodian of such records; a certified copy of the adoption decree, the authenticity of which had to be attested to by the public custodian of the record, bearing his signature and seal; a copy of the social welfare report (child study report and home study report); and copies of the petition and all exhibits presented to the court.  

In a September 2010 statement, the Appellant requested that her children receive DEA.  She asserted that she has provided the necessary evidence requested by the RO in order to support the claim on behalf of CC and LC.  

Analysis

The Appellant contends that she has furnished all necessary documentation to establish DEA for CC and LC, who she claims are the children she adopted with the Veteran.  

The issue to be addressed is whether CC and LC may be recognized as the Appellant's and Veteran's adopted children (and dependents) for purposes of receiving DEA.  After applying the law to the facts presented in this case, the Board finds that CC and LC are not legally entitled to DEA.  

In pertinent part, the law initially requires that to be a "child" of the Veteran, the individual must be a child legally adopted before the age of 18 years.  Although the Appellant first indicated that CC and LC were stepchildren, she later admitted that she misstated the relationship and asserted that CC and LC were adopted children.  The relevant evidence she presented to support the claim consisted of statements that she and the Veteran adopted CC and LC as small children and raised them, and of a "Joint Affidavit of Adoption" purporting to show an agreement in October 1994 between the birth or natural parents and the Appellant and Veteran to adopt CC and LC.  

Despite the agreement set forth in the affidavit of adoption, this instrument is not shown to be an authenticated legal document of an adoption.  It does not contain a seal or signature of the custodian of the public records of birth, attesting that the document is an adoption decree.  Nor are there any child/home study reports, adoption petitions, or court exhibits to accompany the purported agreement between the birth parents and the Appellant and Veteran.  




It appears that the document merely encapsulates a private agreement between two parties in the Philippines, and is not the representation of an adoption sanctioned or recognized by legal authorities under the laws of the Philippines.  In fact, there is no indication that the Appellant and Veteran participated in any adoption proceedings in the jurisdiction in which they resided or that the Veteran and the Appellant were ever recognized as the adoptive parents of CC and LC under the law of the Philippines, where all parties involved resided.  

Moreover, there is no evidence that prior to his death the veteran was receiving a dependent's allowance or similar monetary benefit for CC and/or LC.  That is, VA has not ever recognized CC or LC as the adopted children of the Veteran.  It is noted, too, that on her initial claim for VA benefits in 2006, the Appellant appeared to indicate that the Veteran had no children whatsoever.  

In short, the evidence does not demonstrate that CC and LC are the legally adopted children of the Veteran and the Appellant.  Therefore, they are not recognized as the Veteran's adopted children for purposes of receiving DEA.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive in a matter, the claim must be denied because of the absence of legal merit or entitlement under the law).

To the extent the Appellant seeks equitable relief for CC and LC, claimed as her and the Veteran's adopted children, regardless how compelling her case may be, no equity can create a right to payment out of the United States Treasury which has not been provided for by Congress.  Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990).








The Board is bound by the law and without the authority to grant benefits on any other basis.  As the preponderance of the evidence is against the Appellant's claim, the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).


ORDER

Legal entitlement to Dependents' Educational Assistance for CC and LC, claimed as the adopted children of the Veteran and the Appellant, is denied.  



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs