Citation Nr: 1752651 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-02 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to recognition as a helpless child of the Veteran for purposes of Department of Veterans Affairs (VA) benefits on the basis of permanent incapacity for self-support prior to attaining the age of 18. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran had recognized guerilla service from August 1944 to September 1945 and Regular Philippine Service from September 1945 to January 1946. He died in October 1985. The appellant is his surviving daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 Administrative Decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The appellant was scheduled to testify at a personal hearing at the RO in December 2012, but she elected instead to have an informal hearing conference. A report of the informal hearing conference dated in December 2012 is on file. This matter was previously before the Board in February 2015 at which time the case was remanded for further development. FINDINGS OF FACT 1. The appellant is the Veteran's daughter. She was born on June [REDACTED], 1960, and reached the age of 18 on June [REDACTED], 1978. 2. The appellant did not become permanently incapable of self-support prior to attaining 18 years of age, and is not between the ages of 18 years and 23 years and pursuing a course of instruction at an approved educational institution. 3. The evidence of record demonstrates that the appellant is married; there is no indication that such marriage was void, annulled, or otherwise terminated. CONCLUSION OF LAW The criteria for entitlement to recognition of the appellant as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 have not been met. 38 U.S.C. §101 (4)(A) (2012); 38 C.F.R. §§ 3.57, 3.210, 3.356 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant asserts that she is entited to VA benefits as the child of the Veteran by virtue of his recognized guerilla service. In this regard, she contends that VA form letters that were issued in July 2012 and August 2012 contain a notation "Payee No 11" next to the Veteran's name and that this is evidence of her entitlement to VA benefits. See appellant statement received in May 2013, and Schreiber Translations Inc. documents, page 6. However, this notation in no way implies the appellant's entitlement to VA benefits. Moreover, it must initially be determined whether an applicant meets basic eligibility criteria for VA benefits. A "child," as defined for 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. See 38 U.S.C. §101 (4); 38 C.F.R. §3.57 (a). Marriage shall not be a bar to recognition as a child for VA benefit purposes if the marriage is void or has been annulled by a court with basic authority to render annulment decrees, unless the Secretary determines that the annulment was secured through fraud by either party or collusion. See 38 U.S.C. §103 (e) (2012); see also 38 C.F.R. §3.55 (b)(1). Rating determinations regarding incapacity for self-support will be made solely on the basis of whether the child is permanently incapable of self-support through his or her own efforts by reason of physical or mental defects. The question of permanent incapacity for self-support is one of fact for determination by the rating agency on competent evidence of record in the individual case. Rating criteria applicable to disabled veterans are not controlling. See 38 C.F.R. §3.356 (2). The appellant in the instant case was born in June 1960 and attained the age of 18 years in June 1978. She was 52 years when she filed her claim in August 2012 for VA benefits. Since the record establishes that she is not under the age of 23, the material issue in this case is whether she was permanently incapable of self-support by reason of physical and/or mental defect before reaching the age of 18 years. The evidence of record is against a finding that the appellant was permanently incapable of self-support at the age of 18 by reason of mental or physical defect. Although the appellant asserted when she filed her claim for VA benefits in August 2012 that she had visual problems due to cataracts, she has neither asserted nor is there any evidence that shows that she had physical or mental defects prior to reaching the age of 18 that rendered her permanently incapable of self-support. Absent sufficient evidence to indicate otherwise, the Board cannot find that the appellant was a "helpless child" for VA purposes. In written argument in October 2017, the Veteran's representative asked that the RO make contact with the appellant and find out if she can provide proof that she became incapable of self-support before the age of 18 years while she was member of the Veteran's household. Her representative further noted that she needed to prove that the Veteran's grandsons were legally adopted and were members of the Veteran's household prior to his death. However, this has already been accomplished. That is, the Board directed in February 2015 that the RO provide notice to the appellant of the requirements of her claim for benefits as well as to afford her the opportunity to identify or submit additional pertinent evidence. The RO issued the appellant a letter meeting these directives in March 2015 thus substantially complying with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) However, the appellant did not respond to this letter. The above determination notwithstanding, the claim is otherwise precluded by the fact that the appellant has married. See appellant statement received in October 2013, and Schreiber Translations Inc. documents, page 8 (appellant asserted that her youngest sibling was the only unmarried one at the time that the Veteran passed away). Marriage is a bar to recognition as a child for VA benefit purposes absent evidence that the marriage was annulled, declared void, or otherwise terminated. 38 U.S.C. §§ 101 (4), 103 (e) and 38 C.F.R. §3.57 (a)(1). In light of the above, the Board finds that the claim for recognition as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 must be denied. Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to recognition as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is denied. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs