Citation Nr: 1754517 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-00 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits based on helpless child status. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active service from February 1941 to May 1946. The Veteran died in January 1989, and the appellant is his surviving child. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the May 2013 and June 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction of the claim has since been transferred to the RO in Denver, Colorado. The Board notes that the appellant requested a hearing before a Veterans Law Judge at the RO. A Travel Board hearing was scheduled in August 2017, but the appellant failed to appear. As such, her hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (d) (which stipulates that, if the appellant fails to appear for a scheduled hearing, the case will be processed as though the request for a hearing had been withdrawn). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development is required before the appellant's claim can be adjudicated. The appellant contends that she is entitled to recognition as the "helpless child" of the deceased Veteran on the basis of permanent incapacity for self-support prior to attaining age 18. In the March 2013 Application for DIC, Death Pension, and Accrued Benefits by a surviving spouse or child, the appellant indicated that she was seriously disabled prior to turning 18 years of age. According to the appellant, she has been disabled since childhood due to her learning and physical disabilities which rendered her permanently incapable of self-support prior to turning age 18. In a June 2013 statement, the appellant explained that she was born after World War II and placed into St. Clara's Orphanage within a few months of her birth due to the fact that her biological mother disappeared after her birth, and the Veteran suffered from tuberculosis and psychiatric issues after his military discharge and was therefore unable to take care of her at the time. According to the appellant, she had numerous illnesses and developed a number of disabilities while she was in the orphanage. The record reflects that the appellant was born on October [REDACTED], 1947 and turned 18 in October 1965. Survivor benefits may be awarded to a veteran's surviving spouse, children and parents when the veteran dies as a result of service-connected or compensable disability. See 38 U.S.C. § 1310. DIC benefits are payable to a child of a veteran. 38 U.S.C. §§ 101 (14), 1313, 1542 (West 2012); 38 C.F.R. § 3.5 (2017). 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. To establish status as a surviving child of a veteran, 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. § 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. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1)(ii), 3.356. Under 38 U.S.C. § 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. § 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). In correspondence date-stamped as received in October 2013, the appellant admitted that she had been married once many years prior, but her husband abandoned her, and they were officially separated in 1982. She further stated that he was killed two years after their separation. In the November 2013 Statement of the Case (SOC), the Decision Review Officer (DRO) referenced numerous records that have yet not been associated with the appellant's claims file. Specifically, the evidence of record at the time included records which appear to have been part of the Veteran's claims file when he was alive, to include Social Surveys completed on the Veteran, and dated in January 1947, May 1947, and July 1950; a Statement of Dependents, received from the Veteran that was dated in September 1948; a March 1954 statement from the Veteran; a March 1968 VA Form 22-5490, Application for Educational Assistance; an April 1968 VA Form 21-674, Request for Approval of School Attendance; a June 1968 VA Form 21-674, Request for Approval of School Attendance; and the Veteran's VA Form 21-526, Application for Compensation and/or Pension, dated in May 1981. After reviewing the evidence in full, the DRO determined that permanent incapacity for self-support for the appellant had not been established. In the Reasons and Bases section, the DRO also referenced records issued from St. Clara's Orphanage which reflected that the appellant was placed there in the 1950s, and did not document any disability she may have. The DRO further noted that VA Form 21-674 (Request for Approval of School Attendance), dated in April 1968, reflected that the Veteran was paid additional benefits for the appellant after she turned 18 years of age due to the fact that she was attending secretarial school. It was further noted that in the Veteran's May 1981 Application for Compensation and/or Pension, in the section requesting that he list his dependents, the Veteran did not list the appellant as a dependent child. The DRO also noted that the Veteran did not file a claim during his lifetime to continue having the appellant be considered a dependent on the basis that she was permanently incapable of self-support. Unfortunately, none of the pertinent records listed in the Evidence section of the SOC, and referenced and relied upon by the DRO when reaching its negative conclusion, appear to have been associated with the appellant's claims file. In light of the fact that there are numerous missing records which have been referenced and taken into consideration by the DRO in the SOC, that appear to have a bearing on the appellant's claim, a remand is necessary to accord the AOJ an opportunity to obtain these documents and associated them with the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and request that she provide documentation concerning her marital history, to include a copy of her marriage certificate and her divorce decree, if possible. If there is no divorce decree available, request that she provide a copy of her former husband's death certificate. 2. Obtain a copy of the Veteran's claims file and all records associated with his claims file, including (but not limited to) the referenced Social Surveys completed on the Veteran, dated in January 1947, May 1947, and July 1950; any and all statements from the Veteran; the May 1968 VA Form 22-5490 (Application for Educational Assistance); the April 1968 and June 1968 VA Forms 21-674 (Requests for Approval of School Attendance); and the May 1981 VA Form 21-526 (Veteran's Application for Compensation and/or Pension). In addition, obtain a copy of any records issued from St. Clara's Orphanage in Denver, Colorado (if these records are not associated with the Veteran's claims file). The aid of the appellant in securing records from St. Clara's Orphanage, to include providing necessary authorization(s), should be enlisted as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the appellant informed in writing. All of the above must be made available to the Board for appellate review. 3. After conducting any additional development deemed necessary, readjudicate the claim on appeal. If the benefit sought on appeal is not granted, the appellant and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). _________________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).