Citation Nr: 20004328 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 13-23 935 DATE: January 17, 2020 ORDER Entitlement to recognition of the appellant as the helpless child of the deceased Veteran based on permanent incapacity for self-support prior to attaining the age of 18, for purposes of establishing entitlement to dependency and indemnity compensation (DIC), is denied. FINDING OF FACT The appellant does not qualify as a child or dependent of the deceased Veteran for Department of Veterans Affairs (VA) purposes due to evidence the appellant was previously married. CONCLUSION OF LAW The criteria to recognize the appellant as a “helpless child” of the Veteran have not been met. 38 U.S.C. §§ 101(4)(A)(ii), 103(e); 38 C.F.R. §§ 3.55(b)(1), 3.57(a)(1), 3.356(a), 3.1000 (d)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1951 to January 1954. The Veteran died in August 1993. The appellant is the Veteran’s son. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2017, the Board remanded this appeal for further development. Compliance with prior Board remand In November 2017, the Board remanded the claims on appeal for further development. For the reasons explained below, the Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). In November 2017, the Board ordered the RO to undertake development to obtain information related to the appellant’s prior marriage specifically the dates and circumstances of his marriage, termination of his marriage as well as any other information which may have rendered the marriage invalid from inception. The RO was also directed to contact and ask the appellant to submit or provide identifying information and any necessary authorization to enable VA to obtain evidence showing his permanent incapacity for self-support prior to his reaching 18 years of age including medical records, statements from treating physicians, or findings of incapacity by courts or other government entities. The RO was also ordered to remind the appellant that failure to provide the requested information will result in his claim being adjudicated on the evidence of record. The RO was furthered directed to readjudicate the claim and provide the appellant with a Supplemental Statement of the Case (SSOC) if it remains denied. The November 2017 Board decision, remanding the claim for further development was mailed to the appellant’s address of record and did not come back as returned mail. The Board acknowledges that the RO sent the appellant a letter requesting the above indicated additional information to support the appellant’s claim and complete enclosed authorizations and consents for release of information in September 2018. The RO further indicated in the September 2018 letter to the appellant that “failure to provide the information requested in this letter will result in your appeal being adjudicated based on the evidence of record, which may result in denial of benefits.” The September 2018 letter to the appellant, requesting additional information and completion of releases for information, was mailed to the appellant’s address of record and did not come back as returned mail. The RO prepared an October 2018 SSOC denying the DIC benefits sought by the appellant. The October 2018 SSOC was mailed to the appellant’s address of record and came back as returned mail with a new address. The RO then prepared a November 2018 SSOC denying the DIC benefits sought by the appellant. The November 2018 SSOC was mailed to the appellant’s new address of record and this time did not come back as returned mail. The Board notes that the Veteran has not submitted any additional evidence since the November 2017 Board remand. Accordingly, the Board will find that the RO substantially complied with the November 2017 Board remand order. Dependency and Indemnity Compensation (DIC) Benefits For purposes of determining eligibility as a claimant, a child must be unmarried, and either must be under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.356(a), 3.1000(d)(2). To establish entitlement to the benefit sought on the basis of being a helpless child, various factors under 38 C.F.R. § 3.356 are for consideration. See 38 C.F.R. § 3.356. The marriage of a child of a Veteran shall not bar recognition of such child 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 death 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). Entitlement to recognition as the helpless child of the deceased Veteran based on permanent incapacity for self-support prior to attaining the age of 18. The appellant asserts entitlement to DIC benefits as a child of the deceased Veteran who is permanently incapable of self-support prior to attaining the age of 18 years. Factual Background In a June 2012 Report of General Information, the appellant informed the VA of his intent to file for death pension as the surviving son of the Veteran based on his disability. In July 2012 the appellant applied for DIC, death pension and accrued benefits. The appellant reported he was previously married. See July 2012 VA Form 21-534 Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Child. The appellant also submitted August 2011 Social Security Administration (SSA) records which showed the appellant was determined disabled as of May 1990 because medical evidence stated he needed crutches to assist him in walking. The appellant’s disability was alleged due to cerebral palsy. In his September 2012 Notice of Disagreement (NOD), the appellant indicated he was no longer married and is divorced. The appellant wrote that he was born handicapped. In an August 2013 Form 9, the appellant’s caregiver indicated the appellant’s prior marriage was between two good friends and was never considered an actual marriage due to the appellant’s inabilities and physical condition. In a July 2014 Correspondence, the appellant’s caregiver indicated the appellant was born with cerebral palsy, has very little use of his legs, and will be unable to make the trip for his hearing due to his disabilities and financial situation. In an October 2017 Appellant Brief, the appellant’s representative indicated the appellant is the surviving son of the Veteran and the appellant was only married for the support of his medical condition and he was permanently incapable of self-support prior to 18 years of age. The representative noted the appellant has not submitted anything related to his prior marriage such as the dates and circumstances of the marriage, his marriage termination, and any information that rendered his marriage invalid from the inception. The representative also reported the appellant has not submitted medical evidence that showed he was incapable of self-support prior to reaching the age of 18. See October 2017 Appellant Brief. Analysis By way of background, the appellant is the surviving son of the deceased Veteran. The appellant was born in May 1970 and attained the age of 18 in May 1988. The appellant seeks DIC benefits as the helpless child of the deceased Veteran based on permanent incapacity for self-support prior to attaining the age of 18. Based on the evidence of record, the Board finds the appellant does not meet the criteria of “child” because there is evidence that the appellant was married and subsequently divorced. The Board notes that for purposes of determining eligibility, a “child” of the Veteran must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.356(a), 3.1000 (d)(2). Here, the evidence of record shows that appellant was married and subsequently divorced. See July 2012 VA Form 21-534 Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Child, September 2012 NOD, and August 2013 Form 9. Although neither a marriage certificate or divorce decree are of record, there is nothing in the claims file to suggest anything other than what the appellant has reported. Furthermore, it is unclear to the Board whether the appellant would qualify as a child or dependent of a deceased Veteran under an exception to the requirement a child be unmarried. If the appellant is divorced, he could still be deemed a “child” of the Veteran for VA purposes only if his marriage was void, annulled, or terminated by legal proceedings commenced prior to November 1, 1990. 38 U.S.C. § 103(e); 38 C.F.R. § 3.55(b)(1). The appellant has not asserted, and the evidence of record does not show that the appellant’s marriage was void, annulled, terminated prior to November 1, 1990, and there is no other indication those requirements are met in this case. The appellant has not responded promptly and in full to all requests for information, despite the VA’s attempts to obtain additional information in support of his claim as discussed above. As such, due to the appellant’s disqualifying marital situation, the Board need not address the factors regarding whether he became permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years under 38 C.F.R. § 3.356(a). On the basis of the evidence of record and in accordance with 38 U.S.C. § 103(e) and 38 C.F.R. § 3.55(b)(1), the Board finds that the claim of entitlement to recognition of the Veteran’s son as a helpless child on the basis of permanent   incapacity for self-support prior to attaining the age of 18 years is precluded as a matter of law. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Gerlt, Law Clerk The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.