Citation Nr: 1303718	
Decision Date: 02/04/13    Archive Date: 02/08/13

DOCKET NO.  09-11 874	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to dependency and indemnity compensation (DIC) benefits based on helpless child status.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. J. Houbeck, Counsel



INTRODUCTION

The Veteran served on active duty from March 1962 to June 1966.  He died on June [redacted], 2002.  The appellant is his daughter.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 decision of the Department of Veterans Appeals (VA) Regional Office (RO) in Buffalo, New York. 
 
The Board notes the appellant requested a hearing in her April 2009 Substantive Appeal form, but withdrew the hearing request in May 2009 and requested that the matter be sent directly to the Board for review.

The Board has not only reviewed the physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence.


FINDING OF FACT

The appellant, who is the daughter of the Veteran, is shown to have been married since November 1, 1990.


CONCLUSION OF LAW

The claim for DIC benefits on the basis of being a helpless child of the Veteran must be denied by operation of law.  38 U.S.C.A. §§ 101, 1318, 1542 (West 2002 & Supp. 2012); 38 C.F.R. §§3.55, 3.57 (2012).
 


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided by the Secretary that is necessary to substantiate the claim.

As will be explained, the pertinent facts in this case are not in dispute and the law is dispositive.  Consequently, to this extent, there is no additional evidence that could be obtained to substantiate the claim, and no further action is required to comply with the VCAA or the implementing regulation.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004).

Helpless Child Benefits

The appellant claims DIC benefits as the helpless child of the deceased Veteran.  She maintains that she should be considered a helpless child because she suffered a stroke at age 12 and since that time has experienced difficulty with oral and written communication and understanding, as well as significant problems using her right upper extremity and some problems with the right lower extremity.  These problems prevent her from maintaining full time employment.  She states that she was incapable of self support prior to age 18.

In part, an eligible child of a Veteran may be entitled to DIC at the time of the Veteran's death.  38 U.S.C.A. § 1318.  A child must be "unmarried" and must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution.  38 U.S.C.A. § 101(4)(A); 38 C.F.R. §§ 3.57(a)(1).

Under 38 U.S.C.A. § 103(e), marriage of a child shall not bar the furnishing of benefits if the marriage was void or had been annulled by a court having basic authority to render annulment decrees, unless it is determined by VA that the annulment was obtained through fraud by either party or by collusion.  38 U.S.C.A. § 103(e); 38 C.F.R. § 3.55(b)(1).  On or after January 1, 1975, marriage of a child terminated prior to November 1, 1990, shall not bar the furnishing of benefits to or for such child provided that the marriage: (i) Has been terminated by death, or (ii) has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by either party or by collusion.  38 C.F.R. § 3.55(b)(2).

The claims file includes a June 2007 private psychiatric evaluation at which time the appellant indicated that she had been married since age 23 and was now in the process of divorcing her husband.  In her January 2009 Notice of Disagreement, the appellant reported that she had divorced her husband in August 2008.

There is no competent evidence of record that the appellant's marriage was rendered void or annulled.  It is clear from the record, however, that the appellant's spouse was not deceased nor were the parties divorced prior to November 1, 1990.

Although there is not a marriage certificate of record, 38 U.S.C.A. § 5124 indicates, in pertinent part, that, for purposes of benefits under laws administered by the Secretary, the Secretary may accept the written statement of a claimant as proof of the existence of any relationship specified in subsection (b) for the purpose of acting on such individual's claim for benefits.  This provision applies to proof of the existence of any of the following relationships between a claimant and another person: (1) marriage. (2) dissolution of marriage. (3) birth of a child. (4) death of any family member.  See 38 U.S.C.A. § 5124(a)(b) (West 2002).  Further, pursuant to 38 C.F.R. § 3.205, proof of marriage may be established by various official records and by any other secondary evidence which reasonably supports a belief by the Adjudicating activity that a valid marriage actually occurred.  38 C.F.R. § 3.205(a)(7) (2012).

In this case, the appellant's statements of her marriage and subsequent divorce are considered credible, in light of the fact that these statements were made not in her own self-interest.  When the statement regarding being married was made in June 2007, it was not made in connection with an attempt to verify marriage for benefits, but during psychiatric treatment prior to filing the current claim for benefits.  Therefore, this statement has been accepted by VA as proof of marriage as of June 2007.  As to the appellant's subsequent divorce in August 2008, the Board finds no reason to question the veracity of this statement and it is accepted that the appellant's marriage ended in August 2008.

Since the appellant submitted a statement that as of June 2007 she was married, albeit that she was in the process of divorce, the provisions of 38 U.S.C.A. § 103(e) and 38 C.F.R. § 3.55(b)(2), pertaining to a marriage of a child terminated prior to November 1, 1990, do not apply.  Additionally, she does not allege, nor does the evidence of record show, that the marriage was rendered void, or annulled, by any appropriate judicial court.

Because of the appellant's disqualifying marital situation, the Board does not need to address the factors regarding whether she became permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years.  See 38 C.F.R. § 3.356(a).

Thus, on this record, the Board finds that the appellant is not eligible for recognition as the helpless child of the deceased Veteran for the purposes of obtaining DIC.

In reaching this conclusion, the Board has considered the Veteran's argument expressed in her January 2009 Notice of Disagreement that the regulatory provision that the marriage needed to be terminated prior to November 1, 1990, "should have been updated each year for those individuals whose marriage ended after November 1, 1990."  In her April 2009 Substantive Appeal, the appellant further indicated that she did not believe, "that VA regulations should be allowed to penalize me because my marriage was not terminated prior to November 1, 1990."  While the Board is not unsympathetic to the appellant's arguments, it is bound by the law, and this decision is dictated by the relevant statutes and regulations.  The Board is without authority to grant benefits simply because it might perceive the result to be equitable.  See 38 U.S.C.A. §§503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)).

As a final point, the Board notes that the appellant claims she has been found to be a helpless child for benefit purposes from the Social Security Administration (SSA).  Although VA is required to consider the SSA's findings, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA.  See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991).  Adjudication of VA and SSA claims is based on different laws and regulations.  Thus, SSA's determination has little probative value in this matter, and is not sufficient, in this case, to overcome the other evidence that does not establish that the appellant is a helpless child of the deceased Veteran for the purposes of obtaining DIC.



In a case such as this where the law is dispositive, the claim must be denied due to the absence of legal entitlement.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to DIC benefits based on helpless child status is denied.



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs