Citation Nr: 21067303 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-29 172 DATE: November 3, 2021 ORDER Recognition of J.B. as the Veteran's adopted child for VA purposes is denied. FINDINGS OF FACT 1. The Veteran died in August 2014. 2. In May 2017, more than two years after the Veteran's death, the appellant adopted J.B. CONCLUSION OF LAW The criteria for recognition of J.B. as the adopted child of the Veteran for VA purposes have not been met. 38 U.S.C. § 101(4) (2012); 38 C.F.R. § 3.57 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1967 to March 1969. Unfortunately, he died in August 2014. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a July 2020 Board Virtual hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to recognition of J.B. as the Veteran's adopted child for VA purposes. The appellant seeks to establish recognition of J.B. as the Veteran's adopted child for VA purposes. After careful review of the record, the Board finds that recognition of C.W. as the Veteran's adopted child for VA purposes is not warranted. For purposes of additional compensation, the term "child" 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, and an illegitimate child if certain specific criteria are met. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57(a). Under VA regulations, an adopted child means a child adopted pursuant to a final decree of adoption, a child adopted pursuant to an unrestricted 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. 38 C.F.R. § 3.57(c). Further, the term "adopted child" includes a child who was (1) living in the veteran's household at the time of the veteran's death, (2) adopted by the veteran's spouse under a decree issued within two years of the veteran's death, 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. 38 C.F.R. § 3.57(c)(2). In this case, it is clear that J.B. is not a legitimate child, illegitimate child, or stepchild of the Veteran. See May 2017 Order of Adoption. In addition, the appellant does not contend and the evidence does not indicate that the Veteran adopted J.B. prior to the Veteran's death. Id.; see also July 2020 Board hearing transcript. Thus, the Board's consideration is limited to whether the J.B. was living in the Veteran's household at the time of the Veteran's death and was adopted by the appellant under a decree issued within two years of the Veteran's death. In support of her claim, the appellant submitted a May 2017 Order of Adoption in which a West Virginia state court found that J.B. had lived with the appellant and been in her custody since January 2008. The Board recognizes that J.B. was living in the Veteran's household at the time of the Veteran's death. See May 2017 Order of Adoption. However, the record indicates that the appellant did not adopt J.B. until May 2017. Therefore, the appellant did not adopt J.B. within two years of the Veteran's death, as is required for recognition of J.B. as the Veteran's child for VA purposes. As such, the claim seeking recognition of J.B. as the Veteran's child for VA purposes is precluded by regulation and must therefore be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Although the Board is very sympathetic to the appellant's claim, particularly as it acknowledges that the Veteran and appellant acted as parents to J.B. prior to the Veteran's death, the law and regulations governing dependents is very specific. The Board is without authority to grant eligibility to 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). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.