Citation Nr: 20007797 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 16-44 389 DATE: January 30, 2020 ORDER Recognition of the Veteran's daughter. S.M. as his dependent child for Department of Veterans Affairs (VA) benefit purposes is denied. FINDINGS OF FACT 1. S.M was born in January 1983, reached the age of 18 in January 2001 and the age of 23 in January 2006. 2. S.M. was not permanently incapable of self-support at the time she attained the age of 18 years. 3. The appellant did not submit evidence showing that she was completing education or training prior to attaining the age of 23 years. CONCLUSION OF LAW The criteria for recognition of the Veteran’s daughter, S.M., as his dependent for VA purposes have not been met. 38 U.S.C. §§ 1115, 5107; 38 C.F.R. § 3.57. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 1970 to March 1972. He died in November 2015. The appellant is claiming VA benefits as a dependent child. In her September 2016 substantive appeal, the appellant requested a Board hearing at the local Regional Office. A hearing was scheduled in June 2019; however, the appellant failed to appear and has not submitted a motion showing good cause for such failure. As such, the appellant’s hearing request is deemed withdrawn. Recognition of the Veteran's daughter, S.M., as his dependent child for VA benefit purposes The appellant is seeking recognition as the dependent child of the Veteran for VA benefit purposes. The term "child" means a person who is unmarried and (i) who is under the age of eighteen years; (ii) who, before attaining the age of eighteen years, became permanently incapable of self-support; or (iii) who, after attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty-three years), is pursuing a course of instruction at an approved educational institution. See 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57 (a). Additional pension or compensation may be paid from a child's 18th birthday based upon school attendance if the child was at that time pursuing a course of instruction at an approved school and a claim for such benefits is filed within one year from the child's 18th birthday. 38 C.F.R. § 3.667 (a)(1). Pension or compensation based upon a course of instruction at an approved educational institution which was begun after a child's 18th birthday may be paid from the commencement of the course if a claim is filed within one year from that date. 38 C.F.R. § 3.667(a)(2). Here, the appellant has not asserted that she meets any of the criteria outlined above. Rather, she appears to claim that given the fact that she took care of her father, the current regulations are essentially not fair for excluding adult children. Based on the evidence of record, the Board must find that entitlement to VA benefits for the appellant as a dependent child of the Veteran is not warranted. In this regard, S.M. does not meet the definition of a child for VA purposes. Initially, the Board observes that the evidence of record does not show that S.M. was permanently incapable of self-support by reason of physical or mental defect upon attaining the age of 18 years. Importantly, the appellant has not asserted that she was permanently incapable of self-support. Moreover, the appellant has not submitted any medical evidence documenting any such physical or mental defects prior to reaching 18 years of age. Further, there is no evidence of record showing that an application for benefits due to attaining education training was received prior to the dependent reaching age 23.   In conclusion, the Board finds that the preponderance of the evidence is against the appellant's claim for recognition as the Veteran’s dependent child for VA purposes. While the Board sympathizes with the appellant for her loss, the Board is prohibited from awarding benefits on the basis of equity, and is bound by the laws and regulations pertinent to the regulations for a dependent child. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b). M.J COLICELLI Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.