Citation Nr: 1623923 Decision Date: 06/15/16 Archive Date: 06/29/16 DOCKET NO. 14-24 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a respiratory disability, claimed as bronchial asthma. 2. Entitlement to additional compensation benefits for an adopted child, P. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1975 to April 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines, which denied service connection for bronchial asthma. This matter is also before the Board on appeal from a September 2013 Manila RO administrative determination, denying recognition of an adopted child, P., for the purpose of receiving additional disability compensation benefits. The Veteran subsequently relocated, and the Reno, Nevada RO currently has jurisdiction of the claims. In January 2015, a videoconference hearing was held before the undersigned; a transcript of that hearing is associated with the claims file. The issue of entitlement to service connection for bronchial asthma is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has been assigned a 80 percent or higher disability rating, effective from 1997, making him eligible for an additional amount of compensation for a dependent child. 2. In September 2012, the Veteran submitted a VA Form 21-686c identifying P., born in July 1999, as his and his wife's adopted daughter. 3. In May 2013, VA received a Decision, issued by the Republic of the Philippines Regional Trial Court, Fourth Judicial Region, dated May 2012, granting the Veteran's petition for adoption of P., which was finalized in September 2012; P. may be recognized as the Veteran's adopted child for VA purposes. 4. The evidence shows that P. has received all of her support from the Veteran, with whom she resides, and that she is not in the custody of her natural parents. CONCLUSION OF LAW The criteria for additional compensation benefits based on recognition of an adopted child, P., have been met. 38 U.S.C.A. § 101(4) (West 2014); 38 C.F.R. §§ 3.4(b), 3.57 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. As the decision pertaining to a claim for additional disability compensation benefits for an adopted child is favorable, no further action is required to comply with the VCAA. Legal Criteria, Factual Background, and Analysis An additional amount of compensation may be payable for a spouse and child where a Veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). For VA purposes, a recognized "child" of a veteran includes those children legally adopted before the age of 18 years. See 38 C.F.R. 3.57(a). VA defines an "adopted child" as 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(c). The law states that a child who is adopted under foreign law by a veteran may be recognized as a child of the veteran for purposes of additional compensation only if four conditions are met. See 38 U.S.C.A. § 101(4)(B). Specifically, 38 U.S.C.A. § 101(4)(B) provides, in pertinent part, that a person residing outside any of the States shall not be considered to be a legally adopted child of a veteran during the lifetime of the veteran unless such person: (i) was less than 18 years of age at the time of adoption; (ii) is receiving one-half or more of the person's support from the veteran; (iii) is not in the custody of the person's natural parent unless the natural parent is the veteran's spouse; and (iv) 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. Id. at (B)(i)(I)-(IV); 38 C.F.R. § 3.57(e)(2). The requirement of evidence from foreign countries is set forth at 38 C.F.R. § 3.205. Evidence of an adopted child's relationship will include 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 case, the Veteran is claiming that he is entitled to additional compensation benefits for his adopted daughter, P., who is his wife's niece (i.e., daughter of her brother). Initially, it is noted that he has multiple service-connected disabilities, with a combined evaluation of 80 percent effective in September 1997, 90 percent effective in February 1999, and 100 percent effective in November 2012. Thus, he meets the pre-requisite disability rating level for the receipt of a dependency allowance (he already was in receipt of an allowance for his wife). In a November 2011 VA Form 21-0538, Status of Dependents Questionnaire, the Veteran indicated that the petition for adoption of P. was ongoing. A July 2012 RO letter informed the Veteran that his claim for an additional dependency allowance could not be processed until there was a final decree of adoption by a court. In September 2012, the Veteran filed VA Form 21-686c, Declaration of Status of Dependents, reporting that P. was his adopted daughter. In an April 2013 letter, the RO requested the Veteran to furnish additional evidence concerning his adoption of P., listing numerous documents necessary to substantiate his claim as well as questions for the Veteran to answer. In the next month, the Veteran supplied the requested documentary evidence, consisting of the following certified copies: Decision by the Republic of the Philippines Regional Trial Court, Fourth Judicial Region, Tagaytay City in the matter of the adoption of P. by the Veteran and his wife, issued in May 2012; Certificate of Finality, issued in September 2012, by the Republic of the Philippines Regional Trial Court, Fourth Judicial Region, Tagaytay City; Adoption Home Study Report and Adoption Child Study Report by the Republic of the Philippines Department of Social Welfare and Development, both dated in April 2012; Affidavits of Consent, executed by P. and her natural parents in October 2010; and P.'s original and amended Certificates of Live Birth [listing her natural parents in the original certificate and the Veteran and his wife in the amended certificate], showing her date of birth in July 1999. The Veteran also submitted a statement in May 2013, answering the RO's questions regarding the exercise of parental control over P., where P. was residing and who had custody over her, where her natural parents lived, and how much time P. spent with her natural parents. The Veteran essentially responded that he and his wife exercised day to day parental control over P., that they attended to all her needs, that they had constructive custody over her, that she lived with them and not her biological parents who resided quite a distance from them, that P. saw her natural parents on a weekend basis when they are in the neighborhood, and that no other person provided support to P. In a September 2013 Administrative Decision, the RO denied the Veteran's claim for additional compensation benefits for his adopted child, P., on the basis that the child's natural parents, who are the relatives of the Veteran's wife, had not fully relinquished their parental authority to him and his wife. The RO acknowledged that P. was under the age of 18 years at the time of the adoption but that her custody was not solely vested upon the Veteran and his wife because the child's natural parents visited her every weekend and she continued to call them Mama and Papa (while calling the Veteran and his wife Mommy and Daddy). The RO found that it was clear that the Veteran did not "completely perform parental control over the child and his responsibility is being shared with the child's natural parents who have constant access" to P. The RO held that although the Veteran had the legal right to exercise parental control and responsibility for the welfare and care of P., he did not have sole custody of P. The Veteran appealed the RO's decision in November 2013, asserting in part that P. was not in the custody of her biological parents and that he had total control of her custody. In correspondence in January/February 2014 and in a June 2014 substantive appeal statement, he informed the RO that he and his wife had permanently resettled in Nevada from the Philippines and that their adopted daughter, P., resided with them. He also testified in January 2015 that P. had lived with them since 2009, that their adoption of her was finalized in 2012, that P. moved with them to the United States in 2014 (her natural parents having remained in the Philippines), and that he and his wife were solely responsible for P., making all the decisions concerning her education and financial support. After reviewing the record and applying the law to the facts, the Board finds that the evidence supports recognition of P. as the Veteran's adopted daughter for purposes of additional disability compensation benefits. The applicable statute and regulation (38 U.S.C.A. § 101(B)(4); 38 C.F.R. § 3.57(e)) requires that all four requirements be met, otherwise a child adopted will not be considered a legally adopted child of a veteran for VA purposes. Here, there is no question that P. was less than 18 years of age at the time of the adoption that was finalized in September 2012; that she received more than one-half (in fact, all) of her support from the Veteran; and that she lived with the Veteran full-time for years before and since her adoption was finalized. This was shown by her birth certificate and in the Adoption Home Study Report and Adoption Child Study Report, which were cited to and relied upon by the court in granting the Veteran's petition to adopt P. The basis for the RO's denial of the Veteran's claim was that the Veteran did not have sole "custody" of P. The Board, however, disagrees with the RO on the determination of this fourth requirement. The RO felt that parental responsibility was being shared by the Veteran and P.'s natural parents, given that P. called them Mama and Papa and also saw them on weekend visits. Although the definition of "child custody" under 38 C.F.R. § 3.57(d) pertains to determinations involving pension entitlement (which is not the case here), it is nevertheless instructive. Under that provision, the custody of a child is considered to rest with the Veteran if that person has the legal right to exercise parental control and responsibility for the welfare and care of the child. Clearly, once the adoption petition of the Veteran was finalized by the court in September 2012, he retained the legal right to exercise parental control over P. Further, he assumed full responsibility for P.'s welfare and care from the time of her adoption. There is no evidence to contradict this, even if P. saw her natural parents from time to time and called them by names that acknowledge their role in having given birth to her. Furthermore, and of particular note, the Veteran and his wife, along with P., have relocated permanently to the United States in February 2014 from the Philippines, where they continue to take full control and responsibility for P.'s welfare, without any input from P.'s natural parents who remained in the Philippines. In summary, the adoption of P. by the Veteran and his wife is considered valid under 38 U.S.C.A. § 101(B)(4). Thus, the conditions to establish recognition as a child of the Veteran for VA purposes have been met. 38 U.S.C.A. § 101(B)(4); 38 C.F.R. § 3.57(e). ORDER The appeal seeking additional compensation benefits for an adopted child, P., is granted. REMAND As to the remaining issue of entitlement to service connection for bronchial asthma, the Board finds that further development of the record is necessary to comply with VA's duty to assist in the development of facts pertinent to the claim. 38 C.F.R. § 3.159. First, in February 2016, the Veteran submitted medical release forms, authorizing VA to obtain certain treatment records on his behalf. On one form, he identified treatment from three private physicians at medical centers or hospitals in the Philippines (where the Veteran resided from 1999 to February 2014). While the Veteran has submitted some treatment records from these providers, and the RO in March 2011 made an initial attempt to obtain records from two of the named physicians, it is not known if all treatment records have been obtained. On another form, the Veteran identified treatment from a physician in the pulmonary clinic at a hospital at Nellis Air Force Base in Nevada. In March 2016, VA's Private Medical Records Retrieval Center (PMR) noted its receipt of the medical releases but rejected the records request (because the provider was either foreign or non-private), indicating that the request for the Veteran must be worked "via the traditional process." Therefore, the RO/AOJ should undertake further development to seek the treatment records identified by the Veteran. Second, the record contains copies of favorable decisions from the Social Security Administration dated in October 2002 (partially favorable) and in February 2004 (fully favorable), awarding the Veteran disability benefits. It does not appear that the RO sought to obtain the associated medical records, which may be relevant to the claim on appeal. Third, the Veteran has not been afforded a VA examination in connection with his current claim. In statements and testimony, the Veteran and his representative have asserted that exposures during service, to include asbestos, led to the development of his current pulmonary disability. It has been asserted that respiratory problems during service, such as breathing difficulty and chest congestion, are indicative of the onset of his current disability. In a statement dated in January 2011, for instance, the Veteran reported that in 1985 he experienced breathing difficulty but dismissed it as a non-medical issue (he did not deem it necessary to report to sick bay). In a statement dated in October 2012, the Veteran wrote that he had reviewed his service treatment records (STRs) and found "stages of probable symptoms of [his] bronchial asthma that [he] believe[d] have a direct connection to the issue in hand." He referred to a series of entries in his STRs, which he claimed were "respiratory health concerns that would later on manifest serious repercussion" to his current health condition. In light of the foregoing, the evidence of record is insufficient to decide the claim and a medical examination and opinion are needed. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Request records of the Veteran's treatment for lung problems from the three private healthcare providers (in the Philippines) and the pulmonary clinic at Nellis Air Force Base, as authorized by the Veteran in medical releases received in February 2016. Efforts to obtain such records should be documented in the claims file. 2. Secure from the SSA all records pertaining to the Veteran's application for SSA disability benefits, including all records considered in rendering partially favorable and fully favorable determinations in October 2002 and February 2004, respectively. If the records are unavailable because they have been irretrievably lost or destroyed, it should be so certified for the record (along with an explanation for their unavailability). 3. After receipt and review of the foregoing requested records from private healthcare providers and the SSA, arrange for the Veteran to be afforded a VA respiratory examination in order to determine the nature and etiology of all current pulmonary disabilities. The claims file must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of the claims file, the examiner is requested to: (a) state all respiratory disabilities diagnosed; and (b) as to any respiratory disability diagnosed (or found to have been present at any time since December 2010 when the Veteran filed the present claim), with respect to each such disorder, opine whether such is at least as likely as not (a 50 percent or greater probability) related to the Veteran's period of active service from April 1975 to April 1995, to include any exposure to asbestos therein. The examiner is asked to consider, and comment upon as necessary, the significant facts of the case, which include service treatment records showing that the Veteran had various and occasional complaints pertaining to the upper respiratory tract, with diagnoses of upper respiratory infection and strep throat; service chest X-rays in January 1976, August 1994, and January 1995 were within normal limits, and tuberculosis screenings in August 1984 and January 1995 were negative; a January 1995 separation physical examination report indicated no chest or lung pathology on examination; a June 1995 VA general medical examination report noted a complaint of shortness of breath at times; private medical records beginning in 2000 refer to various respiratory complaints such as cough, and Dr. Beratio treated him for bronchial asthma in September 2000 and October 2000; a June 2001 VA respiratory examination report indicated a normal pulmonary function test; VA outpatient records showing that the Veteran requested medication for asthma in March 2002; private records in 2013 show a diagnosis of bronchial asthma; and the Veteran's testimony in January 2015 to the effect that he his pulmonary problem resulted from exposures in service and he did not receive treatment for his current condition until years after service. All opinions expressed must be supported by complete rationale. 4. Thereafter, adjudicate the claim of service connection for bronchial asthma. If the benefits sought are denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 that are remanded by the Board 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). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs