Citation Nr: 21005072 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-07 788 DATE: January 28, 2021 ORDER The claim of entitlement to recognition of the appellant as a helpless child of the Veteran based on permanent incapacity for self-support prior to attaining the age of 18 years, for purposes of establishing entitlement to dependency and indemnity compensation (DIC), is denied. FINDING OF FACT The appellant, the daughter of the deceased Veteran, was married in April 1985 and divorced in September 1992, and was married again in December 1993 and divorced in August 2008. CONCLUSION OF LAW As the appellant does not meet the basic eligibility requirements for recognition as the helpless child of the deceased Veteran, the claim for DIC benefits on that basis must be denied as without legal merit. 38 U.S.C. §§ 101, 1318, 1542; 38 C.F.R. §§ 3.55, 3.57. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1950 to November 1953. He died in May 1994. The appellant is his daughter. This appeal to the Board of Veteran’s Appeals (Board) arises from a December 2016 decision of the VA Regional Office (RO). In September 2020, the appellant testified during a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. As noted above, the appellant is the child of the Veteran and is an adult. She seeks recognition as a helpless child of the Veteran based on permanent incapacity for self-support prior to attaining the age of 18 years, for purposes of establishing entitlement to DIC benefits. For the appellant to have standing to establish entitlement to VA benefits deriving from the Veteran’s service-connected death, she must be a “child” of the Veteran as defined for VA benefits purposes in 38 C.F.R. § 3.57. A child must be “unmarried” and must be either (i) under the age of 18; (ii) have become permanently incapable of self-support before the age of 18; or (iii) 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); 38 C.F.R. § 3.57(a)(1). Here, the record shows that the appellant was born in September 1967, and that she has twice been married. Thus, before reaching the question of whether she became permanently incapable of self-support before the age of 18, the Board must determine whether her marriages disqualify her from entitlement to VA benefits deriving from her father’s death. Regarding reinstatement of benefits eligibility based upon terminated marital relationships, the marriage must be void or had been annulled by a court having basic authority to render annulment decrees, unless it is determined by VA that the annulment was obtained through fraud by either party or by collusion. 38 U.S.C. § 103(e); 38 C.F.R. § 3.55(b)(1). Also, on or after January 1, 1975, a marriage of a child terminated prior to November 1, 1990, shall not bar the furnishing of benefits to or for such child provided that the marriage: (i) Has been terminated by death, or (ii) has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by either party or by collusion. 38 C.F.R. § 3.55(b)(2). On file are two divorce decrees for the appellant. The first decree, dated in September 1992, dissolved the appellant’s marriage that took place in April 1985. The second decree, dated in August 2008, dissolved the appellant’s marriage that took place in December 1993. Although it does not appear that a marriage certificate is of record for either of the appellant’s marriages, 38 U.S.C. § 5124 provides, in pertinent part, that, for purposes of benefits under laws administered by the Secretary, the Secretary may accept the written statement of a claimant as proof of the existence of certain relationships for the purpose of acting on such individual’s claim for benefits. The provision applies to proof of the existence of the following relationships between a claimant and another person: (1) marriage. (2) dissolution of marriage. (3) birth of a child. (4) death of any family member. See 38 U.S.C. § 5124(a)(b). Further, pursuant to 38 C.F.R. § 3.205, proof of marriage may be established by various official records and by any other secondary evidence which reasonably supports a belief by the Adjudicating activity that a valid marriage actually occurred. 38 C.F.R. § 3.205(a)(7). In this case, a formal judgment of dissolution of marriage for each of the appellant’s marriages, issued by the state of New Jersey, contain a reference to the date of each respective marriage, which was also recognized by the state of New Jersey. Thus, proof of both of the appellant’s marriages is established in this case, as is proof of each of her divorces, in September 1992 and August 2008. As both marriages were terminated after November 1, 1990, and there is no evidence or allegation that either of the marriages were rendered void, or annulled, by an appropriate judicial court, the criteria for reinstatement of benefits eligibility based upon terminated marital relationships as a child of the deceased Veteran have not been met. 38 U.S.C. § 103(e) and 38 C.F.R. § 3.55(b)(2). It follows that both of the appellant’s marriages serve to disqualify her from entitlement to VA benefits deriving from the Veteran’s death. For the foregoing reasons, the Board finds that, as a fundamental matter, the appellant does not meet the basic eligibility requirements for recognition as a helpless child for the purposes of establishing entitlement to DIC. Because of the appellant’s disqualifying marriages, DIC is precluded. Hence, the question of whether she became permanently incapable of self-support by reason of mental or physical defect before attaining the age of 18 years need not be addressed. See 38 C.F.R. § 3.356(a). While not unsympathetic to the appellant’s arguments in this case, pertaining to her need for support, the Board is bound by the law, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C. §§503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). In a case such as this, where the law is dispositive, the claim must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, Counsel 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.