Citation Nr: 18140045 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-04 253 DATE: October 2, 2018 ORDER Recognition of the appellant as a helpless child for the purposes of Department of Veterans Affairs (VA) improved death pension benefits is denied. FINDING OF FACT The appellant was married as of April 1991, at which time it was terminated by divorce. CONCLUSION OF LAW The criteria for recognition of the appellant as a helpless child for the purposes of Department of Veterans Affairs (VA) improved death pension benefits have not been met. 38 U.S.C. §§ 101, 1318, 1542; 38 C.F.R. §§3.55, 3.57. REASONS AND BASES FOR FINDING AND CONCLUSION Recognition of the appellant as a helpless child for the purposes of Department of Veterans Affairs (VA) improved death pension benefits The Veteran had active service from February 1944 to February 1946. He died in June 1984, and the appellant, his daughter, was born in September 1956. For purposes of entitlement to VA benefits, the term "child" includes a person who is unmarried and who, before attaining the age of 18 years, became permanently incapable of self-support. See 38 U.S.C. § 101(4); 38 C.F.R. § 3.57(a). A child of a veteran may be considered a "child" after age 18 for purposes of benefits under Title 38, United States Code, if found by a rating determination to have become, prior to age 18, permanently incapable of self-support. See 38 U.S.C. § 101(4). In order to be eligible for VA benefits under 38 U.S.C. § 101, the "child" must be shown to be permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. The marriage of a child of a veteran shall not bar recognition as the child of the veteran for 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. 38 U.S.C. § 103(e); see also 38 C.F.R. § 3.55(b)(1). Although a child who has been married must now obtain an annulment to qualify for benefits as a helpless "child of the veteran," on or after January 1, 1975, a child whose marriage has been terminated by the death of the spouse or dissolved by a divorce decree would still qualify for benefits as a "child of the veteran," if the divorce decree was obtained prior to November 1, 1990. 38 C.F.R. § 3.55(b)(2); see Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8004(a)(2), (b), 104 Stat. 1388, 1388-343 (1990). The fact that a child is earning his or her own support is prima facie evidence that he or she is not incapable of self-support, and incapacity for self-support will not be considered to exist when the child by his or her own efforts is provided with sufficient income for his or her reasonable support. 38 C.F.R. § 3.356(b)(1). A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of eighteen years, may be so held at a later date even though there may have been a short intervening period or periods when his or her condition was such that he or she was employed, provided the cause of incapacity is the same as that upon which the original determination was made and there were no intervening diseases or injuries that could be considered as major factors. Employment which was only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapability of self-support otherwise established. 38 C.F.R. § 3.356(b)(2). A divorce decree ended the appellant’s marriage to P.A. in April 1991. The record does not contain a marriage certificate for the appellant and P.A., and she left the section relating to her marriage history blank when she filed her claim in August 2013. Although there is not a marriage certificate of record, 38 U.S.C. § 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 additionally 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 (4) death of any family member. See 38 U.S.C. § 5124(a)(b). 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). The Board finds that the divorce decree is proof that the appellant was married to P.A. as of April 1991. See 38 C.F.R. § 3.205(a)(7). Furthermore, the appellant has not contested that she was married as of November 1, 1990, which was less than six months before her divorce. Since the record shows that appellant’s marriage was terminated by divorce after November 1, 1990, the provisions of 38 U.S.C. § 103(e) and 38 C.F.R. § 3.55(b)(2), pertaining to a marriage of a child terminated prior to November 1, 1990, do not apply. Additionally, she does not allege, nor does the evidence of record show, that the marriage was previously rendered void, or annulled, by any appropriate judicial court. Because of the appellant's disqualifying marital situation, the Board does not need to address the factors regarding 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. See 38 C.F.R. § 3.356(a). Thus, on this record, the Board finds that the appellant is not eligible for recognition as the helpless child of the deceased Veteran for the purposes of obtaining improved death pension benefits. In reaching this conclusion, the Board has considered the Veteran's argument expressed in her March 2016 substantive appeal (VA Form 9) that she is no longer married and is entitled to benefits as her father’s daughter. While the Board is not unsympathetic to the appellant's arguments, it is bound by the law, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In a case such as this where the law is dispositive, the claim must be denied due to the absence of legal entitlement. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott Shoreman