Citation Nr: 20004815 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-48 606 DATE: January 21, 2020 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) benefits for the appellant's adopted child as a dependent is denied. FINDINGS OF FACT 1. The Veteran died in September 2011. 2. The Veteran’s surviving spouse legally adopted the child in August 2014. CONCLUSION OF LAW The criteria for entitlement to DIC for the appellant’s adopted child as a dependent have not been met. 38 U.S.C. § 1310, 101(4); 38 C.F.R. § 3.57 (c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1964 to January 1966. Unfortunately, the Veteran passed away in September 2011. The appellant is the Veteran’s surviving spouse who contends that the child, S.S., should be deemed a dependent for DIC benefits. After a thorough review of the evidence, the Board finds that the criteria for the appellant to receive additional dependent benefits for the child under DIC benefits are not met. DIC benefits may be awarded to the surviving spouse, children and parents of a Veteran who died from a service-connected or compensable disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. Under the relevant regulations, a “child” of a veteran includes children legally adopted before the age of 18 years. See 38 C.F.R. § 3.57(a). An 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. For the first element, absent evidence establishing that the child resided with the Veteran prior to the Veteran’s death, the child may not be recognized as the Veteran’s child for purposes of DIC benefits. In this case, the child, S.S., was born in the year 2007. In April 2010, the appellant and the Veteran were appointed as permanency guardians by a court in the state of Maine. The Veteran died in September 2011. Therefore, the Board acknowledges that S.S. was residing in the Veteran’s household at the time of the Veteran’s death. As for the second element, absent evidence establishing that S.S. was the Veteran’s biological child, legally adopted child, or stepchild at the time of the Veteran’s death, the child may not be recognized as the Veteran’s child for purposes of DIC benefits. The Veteran died in September 2011. The appellant submitted a letter from the Department of Health and Human Services Office of Child and Family Services in Augusta, Maine which states that the adoption process was initiated in October 2012 and legalized in August 2014. S.S. was adopted by the Veteran’s surviving spouse in August 2014, more than two years after the Veteran’s death and records do not show that the Veteran was receiving dependent benefits for S.S. for at least one year prior to the Veteran’s death. 38 C.F.R. § 3.57. The appellant did not submit a claim for dependency benefits under DIC for S.S. until September 16, 2014. The records also do not contain an unrescinded interlocutory order or other determination on adoption dated prior to August 2014 and within the two-year period subsequent to the Veteran’s death in September 2011. Id. Therefore, the second element is not met. Finally, for the third element, absent evidence establishing that the child was not receiving any recurring child support contributions of sufficient size, the child may not be recognized as the Veteran’s child for purposes of DIC benefits. Upon review of the record, the biological mother was ordered to pay child support in the appointment of permanency guardian. It is unclear from the motion if the biological mother was responsible for a major portion of the child’s support. Therefore, the Board cannot concede that the child was not receiving outside support of sufficient size. (continued on the next page) The issue is determined as a matter of law. The claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Boyea, 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.