Citation Nr: 1338630 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 06-29 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether D.S.O. may be recognized as the Veteran's adopted child for Department of Veterans Affairs (VA) payment purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley INTRODUCTION The Veteran served on active duty from December 1966 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. D.S.O. was born in July 1999, in the Republic of the Philippines. 2. D.S.O. is the granddaughter of the Veteran and his spouse. Her natural parents were not able to provide for her basic needs, her education, or her future. 3. Pursuant to a July 2004 Court Order and Adoption Decree of the Republic of the Philippines, the petition of the Veteran and his spouse to adopt D.S.O. was granted. D.S.O. was 5 years old at the time. 4. For purposes of determining entitlement to VA benefits, D.S.O. was less than 18 years of age at the time of adoption, was receiving one-half or more of her support from the Veteran, was not in the custody of her natural parents, and resided with the Veteran. 5. Currently, D.S.O. is 14 years of age and lives with the Veteran and his wife in Cavite in the Republic of the Philippines. CONCLUSION OF LAW The criteria are met for recognition of D.S.O. as the Veteran's adopted child for VA purposes. 38 U.S.C.A. §§ 101(4), 1115, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.57(e), 3.102, 3.210(c) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2012)), which imposes obligations on VA in terms of its duty to notify and to assist claimants. The Board has considered this legislation and finds that, given the favorable action taken herein with regard to the pending claim, no further discussion of these VCAA requirements with regard to this issue is required. Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). II. Analysis Except as otherwise provided, the term "child" of a 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 approved educational institution. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. § 3.57(a). For children adopted under foreign law, VA criteria provide that a person residing outside any of the States shall not be considered to be a legally "adopted child" of a 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). These requirements must be met for any period for which payment is made for or to the child. 38 C.F.R. § 3.57(e)(4). With respect to questions concerning birth, the matters of age or relationship are established by one of the following types of evidence: a copy or abstract of the public record of birth; a copy of the church record of baptism; official report from the service department as to birth which occurred while the Veteran was in service; affidavit or a certified statement of the physician or midwife in attendance at birth; copy of Bible or other family record certified to by a notary public or other officer with authority to administer oaths; affidavits or certified statements of two or more persons, preferably disinterested, who will state their ages, showing the name, date, and place of birth of the person whose age or relationship is being established, and that to their own knowledge such person is the child of such parents (naming the parents) and stating the source of their knowledge; other evidence which is adequate to establish the facts in issue, including census records, original baptismal records, hospital records, insurance policies, school, employment, immigration, or naturalization records. 38 C.F.R. § 3.209. With respect to evidence of an "adopted child" relationship, pertinent evidence includes a copy of the decree of adoption or a copy of the adoptive placement agreement and such other evidence as may be necessary. 38 C.F.R. § 3.210(c). In this matter, the record shows that the Veteran is in receipt of a nonservice-connected pension. The rate at which pension benefits are paid to veterans is determined in part by whether or not he or she has any dependents, with a higher rate paid to veterans with dependents. In this matter, the Veteran contends that D.S.O. should be recognized as his adopted daughter for VA payment purposes. See the Veteran's claim dated October 2004. The evidence of record demonstrates that D.S.O. was born in July 1999 in the Republic of the Philippines. See the original and amended birth certificates. D.S.O. is the granddaughter of the Veteran. See the Philippine Adoption Decree dated July 2004. D.S.O.'s natural parents were not able to provide for her subsistence needs, her education, or her future. See the Adoption Study Report dated March 2004. Pursuant to a July 2004 court order and Adoption Decree of the Republic of the Philippines, the Veteran and his wife's petition to adopt D.S.O. was granted. She was 5 years old at the time. At present, D.S.O. is 14 years of age and resides with the Veteran and his wife in Cavite, the Republic of Philippines. The Veteran asserts that D.S.O. should be recognized as his adopted child for VA payment purposes. That is, he maintains that D.S.O. was less than 18 years of age at the time of adoption, was receiving one-half or more of her support from him, was not in the custody of her natural parents, and resides with him. See the Veteran's statements dated October 2008. Upon review of the evidence, the Board finds that the criteria are met for recognition of D.S.O. as the Veteran's adopted child for VA purposes. 38 U.S.C.A. §§ 101(4); 38 C.F.R. § 3.57(e). There are four applicable criteria under 38 C.F.R. § 3.57(e). First, the evidence of record demonstrates that D.S.O. was less than 18 years of age at the time of adoption. 38 C.F.R. § 3.57(e)(2)(i). Her birth certificates, court records, and adoption decrees confirm that D.S.O. was 5 years old at the time of her adoption in July 2004. At present, she is 14 years of age. Second, the evidence of record demonstrates that D.S.O. was receiving at least one-half or more of her support from the Veteran. 38 C.F.R. § 3.57(e)(2)(ii). Specifically, the Veteran and his spouse have been helping support D.S.O. since she was born in 2004. This is confirmed in the July 2004 Adoption Decree, the March 2004 Home Study Report, the letters from D.S.O.'s teacher and school principal, the June 2003, November 2006, and October 2009 affidavits from D.S.O.'s biological father, and in the affidavits of the Veteran's other biological children, neighbors, and disinterested parties. Crucially, these documents corroborate the Veteran's contentions that he and wife are providing for the needs of D.S.O. Third, the evidence of record demonstrates that D.S.O. is not in the custody of her natural parents. 38 C.F.R. § 3.57(e)(2)(iii). It is undisputed that the biological mother of D.S.O. does not have a custodial relationship with her daughter. As to the biological father of the minor child, the Board recognizes that the March 2004 Adoption Home Study Report indicated that her biological father was also residing in the Veteran's home and that he helped to raise his daughter. However, subsequent affidavits filed by the Veteran and his spouse, as well as, the biological father of D.S.O. indicate that he is no longer a part of the household. These contentions were corroborated by a November 2006 affidavit of the Veteran's neighbors who indicated that D.S.O.'s biological father no longer lives in the home nor provides support. See also the Affidavit of Two Disinterested Persons dated November 2006. Moreover, a field examination was conducted in December 2007 which reported that the biological father of D.S.O. no longer resided in the home and did not provide for the daily needs of his daughter. Fourth, the evidence of record demonstrates that D.S.O. was residing with the Veteran. 38 C.F.R. § 3.57(e)(2)(iv). These requirements must be met for any period for which payment is made for or to the child. 38 C.F.R. § 3.57(e)(4). The December 2007 field examination report noted that D.S.O. began residing with the Veteran when she was three years old and has lived continuously in their home since that time. Notably, the Veteran indicated that he and his wife traveled to the United States for six months in 2003 and for one year in 2004 and 2005. See the field examination report dated December 2007. The minor child remained at the Veteran's home during that time and was looked after by the Veteran's housekeeper and his youngest son (not the biological father of D.S.O.). See the field examination report dated December 2007 & the Veteran's statement dated October 2008. The Veteran provided financial support to D.S.O. when he was out of the country. Id. He further indicated that he intended for the minor child to accompany he and his wife on a future trip to the United States. Id. The Board notes that the RO denied the Veteran's petition to recognize the minor child as an adopted child of the Veteran for VA purposes because the evidence established that the natural parent of the adopted child (specifically, her biological father) had not fully relinquished his parental authority of the child. The RO reasoned that the biological father's close proximity to the home of the Veteran and the minor child demonstrated that the custodial relationship had not been relinquished. The Board disagrees with the RO's reasoning above. Initially, the Board acknowledges that the biological father of the minor child was noted to reside with the Veteran and provide care for the minor child at the time of her formal adoption in July 2004. See the Adoption Home Study dated March 2004. However, the evidence demonstrates that the biological father no longer lives in the home or contributes to the care of D.S.O. As described above, this has been corroborated in numerous lay affidavits as well as in the December 2007 field examination report. Accordingly, resolving doubt in the Veteran's favor, the Board concludes that the evidence supports recognition of D.S.O. as the adopted child of the Veteran for VA payment purposes. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Recognition of D.S.O. as the Veteran's adopted child for VA payment purposes is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs