Citation Nr: 1343363 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-23 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits based on helpless child status of R.D.Z. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from June 1952 to June 1956, and from August 1956 to August 1972. He died in September 1989. The appellant is his widow who is already receiving DIC benefits in her own right. She is seeking to establish helpless child status for her and the Veteran's son, R.D.Z. This appeal to the Board of Veteran's Appeals arose from a November 2008 decision of the Department of Veterans Appeals (VA) Regional Office (RO) in Chicago, Illinois. In December 2008, the appellant filed a notice of disagreement. A statement of the case (SOC) was issued in May 2010, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2010. In July 2013, the appellant testified during a Board video-conference hearing held before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In connection with the hearing, the undersigned advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2013). In addition, additional evidence was presented during the hearing which was accompanied by a signed waiver of initial RO consideration. 38 C.F.R. §§ 20.800, 20.1304 (2013). A December 2013 review of the Virtual VA (VVA) paperless, electronic claims processing system does not reveal any documents pertinent to the present appeal in addition to those in the paper claims file. FINDING OF FACT R.D.Z, the son of the (deceased) Veteran and the appellant, was married in July 1983 and divorced in August 2008. CONCLUSION OF LAW As R.D.Z. does not meet the basic eligibility requirements for recognition as the helpless child of the Veteran, the claim for DIC benefits on that basis must be denied as without legal merit. 38 U.S.C.A. §§ 101, 1318, 1542 (West 2002 & Supp. 2013); 38 C.F.R. §§3.55, 3.57 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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). The Board points out, however, that with respect to the July 2013 Board hearing, the appellant was provided an opportunity to set forth her contentions during a hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Here, during the July 2013 hearing, the undersigned noted the issue on appeal. Information was solicited regarding the appellant's son, relating to his history and disability. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the claim on appeal. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the hearing is legally sufficient. II. Analysis The appellant claims DIC benefits, seeking to establish helpless child status for her son R.D.Z., who is also the son of the deceased Veteran. She maintains that her son is mentally and physically disabled and was considered a dependent of the Veteran's, until the son got married in 1983. She asserts that she has cared for, and continues to care for, R.D.Z., as he is unable to care for himself 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). Initially, the Board notes that, following the Veteran's death, the appellant filed a claim for service connection for the cause of the Veteran's death in October 1989; in a September 1989 rating decision, service connection was established for the cause of the Veteran's death. Documentary evidence on file and the appellant's own lay statements reflect that she began receiving DIC benefits on this basis, effective October 1, 1989. Evidence on file reflects that R.D.Z., the son of the Veteran and the appellant, was born in July 1953. The file contains a medical statement from Dr. A.T. dated in April 2005 indicating that the son had a permanent mental disability that qualified his for Social Security disability benefits. The doctor mentioned that this was a permanent disability with no anticipated recovery or changes. Also on file is September 2008 correspondence from the Social Security Administration stating that the son became entitled to disability benefits from January 1976, and was found to be disabled from October 1973. The file also includes evidence to the effect that the appellant's son married in July 1983 and was formally divorced in August 2008. There is no competent evidence of record to the effect that the son's marriage was rendered void or annulled. It is clear from the record, that the spouse of the appellant's son was not deceased, nor were the parties divorced, prior to November 1, 1990. Although it does not appear that there is 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) (2013). In this case, while the marriage certificate is not on file, a formal Judgment of Dissolution of Marriage issued by the state of Illinois contains a reference to the date of the marriage, which was also recognized by the state of Illinois. In essence, proof of both the son's marriage in 1983 and divorce in 2008 are established in this case. As such, 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, there is no allegation to the effect, nor does the evidence of record show, that the marriage was rendered void, or annulled, by any appropriate judicial court. Thus, on this record, the Board finds that, as a fundamental matter, the appellant's son does not meet the basic eligibility requirements for recognition as a helpless child for the purposes of establishing entitlement to DIC. Because of the disqualifying marital situation of R.D.Z., the Board need not address whether he 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). The Board acknowledges that R.D.Z. has been found to be disabled since 1973 for benefit purposes by 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. In any event, in this case, SSA's determination has no bearing whatsoever on the fact that, due to his disqualifying marital status, R.D.Z. does not meet the basic eligibility requirements for recognition a helpless child of the late Veteran's for the purposes of obtaining DIC. While not unsympathetic to the appellant's case, the Board 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)). In a case such as this, where the law is dispositive, the claim must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The claim of entitlement to DIC benefits based on the helpless child status of R.D.Z. is denied. ____________________________________________ JACQUELINE E MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs