Citation Nr: 1513219 Decision Date: 03/27/15 Archive Date: 04/03/15 DOCKET NO. 13-03 105 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Whether the appellant has status as a child/helpless child of the Veteran, on the basis of permanent incapacity for self-support prior to the age of 18, for purposes of establishing eligibility for and entitlement to dependency and indemnity compensation (DIC) or nonservice-connected death pension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to November 1971. He died in July 2007. The appellant is his daughter. This appeal to the Board of Veteran's Appeals arose from a February 2012 decision of the VA Regional Office and Pension Center in Milwaukee, Wisconsin. In March 2012, the appellant filed a notice of disagreement. A statement of the case (SOC) was issued in January 2013, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2013. The Chicago RO currently has jurisdiction of the claims file. 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 addition to the paper claims file, there are paperless, electronic records associated with the Veteran in the Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems . A March 2015 review of these files does not reveal any additional documents pertinent to the present appeal For reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the appellant when further action, on her part, is required. REMAND The Board finds that remand of the claim is necessary for additional development as to the appellant's standing to seek the benefits at issue in this appeal. As noted above, the appellant is the adult child of the Veteran. In order for her to have standing for entitlement to VA benefits deriving from the Veteran's death, she must be a "child" of the Veteran as defined for VA benefits purposes in 38 C.F.R. § 3.57 (2014). In this case, such standing has yet to be established. In this regard, the definition of the term "child," as defined for the purposes 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). VA provides certain benefits for a child of a veteran who is shown to be permanently incapable of self-support by reason of mental or physical defect by or before his or her 18th birthday. 38 U.S.C.A. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1)(ii), 3.356. 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). A brief review of the facts reveals that the Veteran died in July 2007. The file contains the appellant's birth certificate, verifying that she is the natural daughter of the Veteran, born in October 1973. In December 2010, the appellant filed a VA Form 21-534 claim for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits. At that time, she provided no information about her marital status. A private medical record dated in November 1995 indicates that the appellant was single, but engaged. Medical records dated in 2005 and 2012 reflect that the appellant reported that she had been married twice and had two children. Essentially, evidence on file suggests that the appellant has been married, although sufficient evidence establishing this fact is not currently on file. In this regard, 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; and (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) (2014). As the appellant's marital status may disqualify her from establishing status as an eligible claimant in and of itself, additional evidentiary development is warranted in this case. Should the appellant have a disqualifying marital situation, the issue of 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 need not be reached. See 38 C.F.R. § 3.356(a). Accordingly, this matter is hereby REMANDED for the following action: 1. Request that the appellant provide information regarding her marital status and history, to include providing information and certification relating to any current and prior marriages, as well as any divorce/dissolution of marriage. 2. Should additional evidentiary development relating to the appellant's marital history and status be required, undertake such appropriate action, as needed, with annotation in the record of any such action and the addition of pertinent documents to the file. 3. After ensuring compliance with the above development, and undertaking any other notice and development action required by law, determine if the appellant meets the regulatory definition of "unmarried" for purposes of status as a "child" of the Veteran. If warranted, the AOJ should then review the appellant's claim for status as a "helpless child." 4. If the claim is denied, the appellant must be provided with a supplemental statement of the case that includes clear reasons and bases for all determination, and afforded appropriate opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court 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 2014). _________________________________________________ JACQUELINE E MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).