Citation Nr: 1807623 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-26 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether T.T.S. (the grandchild of Appellant and Veteran) may be recognized as the child of the Veteran for purposes of establishing entitlement to dependency benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to February 1970. He died in January 2008. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction was subsequently transferred to the RO in Houston, Texas. The appellant testified at a video conference hearing before the undersigned Veterans Law Judge in September 2017. A transcript of the hearing is associated with the claims file. FINDING OF FACT T.T.S. was the grandchild of the Veteran; however, neither the Veteran nor the Appellant adopted T.T.S. CONCLUSION OF LAW The criteria for recognition of T.S.S. as the "child" of the Veteran for purposes of establishing dependency allowance have not been met. 38 U.S.C §§ 101 (4), 1115, 1310 (2012); 38 C.F.R. §§ 3.4, 3.5, 3.57 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). As will be explained below, under the circumstances of this case, the facts are not in dispute and there is no legal basis upon which the claimed benefits may be awarded and the appellant's claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, because the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts is dispositive in a matter, no action is necessary under the VCAA. Manning v. Principi, 16 Vet. App. 534 (2002). The appellant seeks to establish dependency status for T.T.S. Under VA law, 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. 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. 38 U.S.C. § 101 (4)(2012); 38 C.F.R. § 3.57 (a)(1)(2017). T.T.S. was born in March 2000 to L.D.S., the daughter of the appellant and the Veteran. It is undisputed that T.T.S. is the biological grandson of the Veteran and the appellant. In her October 2013 statement, the appellant stated that her daughter L.D.S. had left T.T.S. in the appellant's custody in October 2005. Based on the foregoing, T.T.S., the grandson of the appellant and the Veteran, is not a legitimate child or stepchild of the Veteran. Additionally, there is conflicting evidence as to whether T.T.S. was a member of the Veteran's household at the time of the Veteran's death. Earlier records indicate that the Veteran and the appellant were separated and lived apart since May 1992. As T.T.S. is not the Veteran's stepchild, however, the requirement that he be a member of the Veteran's household at the time of the Veteran's death is not applicable. The remaining avenue for the purposes of establishing dependency status is if T.T.S. is shown to be the legally adopted child of the Veteran. In her December 2012 Declaration of Status of Dependents, the appellant listed T.T.S. as adopted. In this regard, the term "adopted child" means 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. The term includes, as of the date of death of a veteran, such a child who: (1) was living in the Veteran's household at the time of the Veteran's death, and (2) was adopted by the Veteran's spouse under a decree issued within 2 years after August 25, 1959, or the Veteran's death whichever is later, and (3) was not receiving from an individual other than the veteran or the veteran's spouse, or from a welfare organization which furnishes services or assistance for children, recurring contributions of sufficient size to constitute the major portion of the child's support. 38 C.F.R. § 3.57 (c). At her September 2017 hearing, the appellant testified that she had not adopted T.T.S., but he had lived with her since he was born. She believed this child should be added to her award because of the costs she incurred taking care of him. There is no evidence establishing that T.T.S. was adopted by the Veteran during his lifetime or by the appellant within two years of the Veteran's death. Accordingly, T.T.S. is not the Veteran's adopted child under VA regulations. Thus, T.T.S. cannot be considered a child of the Veteran and dependency status is not warranted. The appellant's assertions that she has raised T.T.S. since infancy and has provided significant financial support does not meet the criteria for VA benefits, which requires a final adoption decree. Accordingly, this claim must be denied as a matter of law. ORDER T.T.S. is not recognized as the child of a veteran for purposes of establishing entitlement to dependency benefits; the appeal is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs