Citation Nr: 1710211 Decision Date: 03/31/17 Archive Date: 04/11/17 DOCKET NO. 11-01 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to additional Dependency and Indemnity Compensation (DIC) benefits for L.M. and A.M. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and M.M. and F.W. ATTORNEY FOR THE BOARD A-L Evans, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from January 1966 to January 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 administrative decision issued by the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA), which determined that the Veteran's two grandchildren could not be added to his DIC benefits as dependents. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in December 2016. A transcript of the hearing is in the Veteran's file. In addition, the record shows that the Veteran submitted evidence and a waiver of initial RO consideration following the December 2016 Board hearing. See 38 C.F.R. § 20.1304(c) (2016). Thus, the Board will consider such evidence in the adjudication of this appeal. FINDING OF FACT The Veteran has legal custody of his grandchildren, L.M. and A.M.; however, L.M. and A.M. are not the legitimate children or stepchildren of the Veteran, nor have they been adopted by the Veteran. CONCLUSION OF LAW The criteria for finding L.M. and A.M. as dependents for purposes of an award of additional DIC benefits are not met. 38 U.S.C.A. § 101(4) (West 2014); 38 C.F.R. § 3.57(c) (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2016). As will be explained below, there is no legal basis upon which the benefits may be awarded and the Veteran's claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The provisions of the VCAA have no effect on an appeal where the law and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). II. Analysis A Veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. 38 U.S.C.A. §§ 1115, 1134, 1135. Here the Veteran has established service connection for pyelitis with coronary artery disease, for recurrent low pack pain and for calcific nodes in left hilar region. His overall combined rating is currently 100 percent. The term "child" is defined, for purposes of Veterans' benefits, as 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 or was a member of the Veteran's household at the time of the Veteran's death, or an illegitimate child and who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self-support; or (iii) 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)(A); 38 C.F.R. § 3.57. The term "adopted child" is defined 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 by 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. See 38 C.F.R. § 3.57(c). The Veteran asserts that he should be entitled to additional benefits for his grandchildren, L.M. and A.M. He and his spouse, M.M., testified at the December 2016 Central Office hearing that they have had legal custody of their grandchildren since 1993. The Veteran noted that the children's parents were deemed unfit to raise them. It was noted that the Veteran and his spouse had never sought to adopt their grandchildren, as they had been awarded legal custody of them. The Veteran stated that he provided "everything" for the grandchildren, to include food, clothes, bedding and school. M.M. testified that she and the Veteran were considered the "parents" for school, medical and insurance reasons. The record reflects a Custody/Visitation Order from Chesterfield Juvenile & Domestic Relations District Court dated in June 1993, which granted the Veteran and his spouse custody of L.M. and A.M. In addition, in support of the claim, letters from the Veteran's sister-in-law F.W., friends C.C., D.N., W.B., daughter T.M. and grandchildren L.M. and A.M. were submitted on behalf of the Veteran and his spouse. There is no dispute as to the facts of the Veteran's claim. The Veteran has legal custody of L.M. and A.M.; however, he has not legally adopted his grandchildren. Unfortunately, the enabling statute pertaining to the definition of children for VA purposes is specific in its terms. Congress has specifically described and designated the category of persons who may be recognized as a dependent for payment of additional VA disability compensation. See 38 U.S.C.A. § 101 (4)(A). Although the Veteran is clearly a primary caretaker for L.M. and A.M., and has been awarded legal custody of them, this does not fall within the definition of a child under 38 C.F.R. § 3.57. Although the Board is very sympathetic to the Veteran's claim, particularly as it acknowledges that the Veteran has acted as a father to his grandchildren, the law and regulations governing dependents is very specific. The Board is without authority to grant eligibility to 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 must apply the law as it exists, and cannot extend benefits out of sympathy or respect for a particular claimant. See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992). In light of the above, L.M. and A.M. may not be recognized as the Veteran's dependents for purposes of VA compensation. 38 U.S.C.A. § 101 (4)(A); 38 C.F.R. § 3.57. As the law is dispositive of the Veteran's claim for additional disability compensation for dependents, the claim must be denied for lack of legal merit. See Sabonis, 6 Vet. App. at 430. ORDER Entitlement to DIC benefits for L.M. and A.M. is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs