Citation Nr: 1829005 Decision Date: 05/22/18 Archive Date: 06/05/18 DOCKET NO. 14-38 344A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether K.C. is entitled to recognition as a "helpless child" of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service in the U.S. Army from February 1966 to November 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the St. Petersburg, Florida Regional Office, which determined that F.C., the Veteran's step-daughter, may not be recognized as a "helpless child" of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. FINDINGS OF FACT 1. The Veteran's step-daughter, K.C., was born in August 1986 and reached the age of 18 years in August 2004. 2. The Veteran and K.C.'s biological mother were legally married in May 2010. 3. The evidence does not show that K.C. is a "child" of the Veteran before the age of 18 years for VA purposes. CONCLUSION OF LAW The criteria for recognition of the Veteran's step-daughter as a "helpless child" on the basis of permanent incapacity for self-support prior to attaining age 18 have not been met. 38 U.S.C. §§ 101(4)(A), 5107; 38 C.F.R. §§ 3.57, 3.102, 3.159, 3.315, 3.356 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Resolution of the appeal turns on the law as applied to the undisputed facts. As such, further assistance, such as the further procurement of records, would not assist the Veteran with the claim. Consequently, no further notice or development is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). 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. See 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57 (a)(1)(ii), 3.356. With regard to 38 C.F.R. § 3.356 factors, it is not disputed that K.C. has a permanent incapacity and was incapable of self-support prior to age of 18 years old. However, at issue is whether K.C. is considered a "child" of the Veteran prior to age of 18 years. The term "child of the veteran" is defined 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. The term "stepchild" means a legitimate or an illegitimate child of the Veteran's spouse. 38 C.F.R. § 3.57; U.S.C. 101(4). 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. Id. Evidence to establish the fact of adoption includes a copy of the decree of adoption or a copy of the adoptive placement agreement. If a jurisdiction requires petition to the court for release of adoption documents or information, or where release of such documents or information is prohibited, a copy of the child's revised birth certificate may substitute for a decree of adoption where a child is adopted into a Veteran's family. 38 C.F.R. § 3.210. The Veteran does not contend, and the evidence does not show, that the Veteran legally adopted K.C. prior to the age of 18. The outcome of this case thus turns on whether the evidence can establish that K.H. was the Veteran's spouse before K.C. had her 18th birthday. The Veteran primarily contends that because he was living with K.C. and K.H. prior to K.C. turning 18, and because she was permanently incapable of self-support at that time, K.C. should be recognized as a helpless child for VA benefits purposes. The facts of this case are not in dispute. The evidence reflects that the Veteran and K.H. were legally married in May 2010. See Marriage Certificate. Although they claim to have lived together in Florida since 2003 during the time period when K.C. was still under the age of 18, and have submitted evidence in support of this contention, Florida law specifically states that no common law marriage entered into after January 1, 1968 shall be valid. See West's Florida Statutes Annotated, Title XLII, Domestic Relations, Chapter 741, § 741.211. Moreover, in an August 2010 claim, the Veteran indicated that K.H. was previously married in 1985 and did not divorce her former spouse (who is also the biological father of K.C.) until April 2010 - less than one month before her marriage to the Veteran and more than five years after K.C. turned 18. There is therefore no legal possibility that K.H. could be considered his "spouse" prior to August 2004 and therefore, K.C. does not meet the definition of "step-child" for VA helpless child purposes. Specifically, the evidence would have to show that K.H. was the legal spouse of the Veteran prior to K.C. turning age 18 (18th birthday) and that K.C. was a member of their household in order to be considered a "step-child" for helpless benefits purposes. To the extent the Veteran has argued that K.C. is an infant in all capacity and therefore could never reach the age of majority, the Board finds that there is a clear distinction between mental capacity and physical age. The statute specifically states "age of 18 years" and 18th birthday not "age of majority." Because K.C. has lived on this earth for more than 18 years and the Veteran was not legally married to her mother or adopted by him at the time prior to her 18th birthday, she cannot be considered his "child." The Board is extremely sympathetic to the circumstances in this case. However, it has no discretion. Rather, the Board is bound by the law and is without authority to grant benefits on an equitable basis. The legal authority pertaining to recognition as a helpless child is prescribed by Congress and implemented via regulations enacted by VA, and neither the AOJ nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). Therefore, the claim for recognition as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 must be denied. Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The claim for recognition as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs