Citation Nr: 1337598 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 13-12 572 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35. ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from August 1994 to May 1996. The appellant is seeking recognition as the Veteran's adoptive daughter for DEA benefits purposes. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2012 administrative decision in which the RO denied the appellant's claim for DEA benefits under 38 U.S.C.A. § Chapter 35. The appellant filed a notice of disagreement (NOD) in August 2012. A statement of the case (SOC) was issued in February 2013, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in March 2013. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran. A review of the documents in such folder does not reveal any additional documents pertinent to the claim on appeal. For the reasons expressed below, the matter on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the appellant when further action, on her part, is required. REMAND The appellant claims that she is entitled to DEA benefits as an adopted child of the Veteran and that she was supported by the Veteran prior to becoming of legal age. The term "child" of a veteran includes, in pertinent part, a child legally adopted before the age of 18 years and who, before reaching the age of 18 years, became permanently incapable of self-support. The term "adopted child" means a child adopted pursuant to a final decree of adoption, a child adopted pursuant to an unrescinded interlocutory decree of adoption while remaining in the custody of the adopting parent (or parents) during the interlocutory period, and a child who has been placed for adoption under an agreement entered into by the adopting parent (or parents) with any agency authorized under law to so act, unless and until such agreement is terminated, while the child remains in the custody of the adopting parent (or parents) during the period of placement for adoption under such agreement. 38 C.F.R. § 3.57 (2013). Evidence to establish the fact of adoption includes a copy of the decree of adoption or a copy of the adoptive placement agreement. If a jurisdiction requires petition to the court for release of adoption documents or information, or where release of such documents or information is prohibited, a copy of the child's revised birth certificate may substitute for a decree of adoption where a child is adopted into a veteran's family. 38 C.F.R. § 3.210 (2013). Photocopies of documents necessary to establish birth or relationship are acceptable as evidence only if VA is satisfied that the copies are genuine and free from alteration. Otherwise, VA may request a copy of the document certified over the signature and official seal of the person having custody of such record. 38 C.F.R. § 3.204(c) (2013). In the instant case, the evidence currently of record consists of a photocopy of a notarized Act of Adoption indicating that the Veteran was adopting the appellant as her biological child in July 2012. A July 2012 Recording Page from a parish clerk's office indicated that this Act of Adoption had been filed for registry and recorded in the Clerk of Court's office. In a March 2013 report of contact, a VA employee indicated that that the appellant was waiting for her revised birth certificate to arrive in the mail. However, such a revised birth certificate is not contained in the record. The Board finds that such document is necessary before determining whether the appellant meets the regulatory requirements to be considered a child of the Veteran for educational benefits purposes. The Board's own research indicates that Louisiana is a jurisdiction that requires petition to the court for release of adoption documents or information. See, e.g., Louisiana Department Of Health and Hospitals, State Registrar and Vital Records, Adoption Information, http://www.dhh.louisiana.gov/index.cfm/page/680 (detailing that after Vital Records completes the process for the new birth certificate, the original birth certificate and other evidentiary documents become part of the confidential and sealed record. The sealed record cannot be reopened, unless ordered by a court of competent jurisdiction.) Thus, to the extent that the record does not contain a certified copy of the Judgment of Adoption or Certificate of Adoption, a certified copy of the revised birth certificate should be obtained. Accordingly, this matter is hereby REMANDED for the following action: 1. Send the appellant a letter requesting that she provide either a certified copy of the Judgment of Adoption or Certificate of Adoption regarding her adoption by the Veteran. She should be further advised that if either of these documents is not available and cannot be obtained, she should provide a certified copy of the revised birth certificate establishing that she is the adopted daughter of the Veteran. The appellant should be informed that it is necessary that such document(s) be certified over the signature and official seal of the person having custody of such record. All records and/or responses received should be associated with the claims file. 2. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority. 4. If the benefit sought on appeal remains denied, furnish to the appellant and the Veteran an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court (CONTINUED ON NEXT PAGE) 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. 2012). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).