Citation Nr: 1815381 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 13-32 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida ISSUE Entitlement to additional Dependency and Indemnity Compensation benefits for two adopted children, L.M. and W.M. REPRESENTATION The Appellant is represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant and her daughter ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to January 1975. He died on January [REDACTED], 2009. The Appellant is his surviving spouse. L.M. and W.M. are the Appellant's biological niece and nephew and, as of March 31, 2011, her adopted children. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2011 administrative decision by the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin, on behalf of the Regional Office (RO) in St. Petersburg, Florida. In November 2017, the Appellant testified before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. FINDING OF FACT The decree formalizing the Appellant's adoption of L.M. and W.M.'s is dated more than 2 years after the Veteran's death. CONCLUSION OF LAW The criteria for finding L.M. and W.M. as dependents for purposes of an award of additional Dependency and Indemnity compensation benefits are not met. 38 U.S.C. § 101(4) (West 2014); 38 C.F.R. § 3.57(c) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As will be explained below, there is no legal basis upon which the benefits sought may be awarded and the Appellant's claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). VA's duties to notify and assist 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). 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. § 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. 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). The salient evidence in this case is not in dispute. The Veteran and the Appellant were married at the time of his death. A certificate of death demonstrates that the Veteran died on January [REDACTED], 2009. The Appellant was granted VA Dependency and Indemnity compensation as the Veteran's surviving spouse. In order for L.M. and W.M. to be considered dependent children, the Appellant's adoption thereof would need to occur within 2 years of the Veteran's death (i.e., before January [REDACTED], 2011). The date of the adoption decree is March 31, 2011. 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 L.M. and W.M. are the legally adopted children of the Appellant, the adoption decree was not dated within in the regulatory period included as an aspect of the definition of a "child" under 38 C.F.R. § 3.57. Although the Board is very sympathetic to the Appellant's claim, particularly as it acknowledges that the Appellant has served as a mother to her biological niece and nephew long before the formalization of the adoption, the laws 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. §§ 503, 7104 (West 2014); 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). The Secretary of VA, however, has discretionary equitable power to provide relief, and the Appellant is free to apply to the Secretary of VA and request that he exercise his discretionary authority to grant her claim on an equitable basis. See 38 U.S.C.A. § 503 (West 2002); 38 C.F.R. § 2.7 (2017); see also Darrow v. Derwinski, 2 Vet. App. 303, 304-06 (1992). Consequently, L.M. and W.M. may not be recognized as the Veteran's dependent children for purposes of additional Dependency and Indemnity Compensation. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57. As the law is dispositive, the Appellant's claim for additional disability compensation for dependents must be denied for lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Additional Dependency and Indemnity Compensation benefits for two adopted children, L.M. and W.M., is denied. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs Department of Veterans Affairs