Citation Nr: 21077038 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-33 990A DATE: December 28, 2021 ORDER Recognition of D.J. as the child of the Veteran for purpose of additional Department of Veterans Affairs (VA) disability compensation, including on the basis of permanent incapacity for self-support prior to attaining the age of 18, is denied. FINDINGS OF FACT 1. The Veteran married D., D.J.'s biological mother, in July 2013. 2. D.J. turned 18 years of age in February 1999. 3. D.J. is the Veteran's stepchild, but did not acquire that status before the age of 18 years; thus, he is not the Veteran's "child" for VA purposes. CONCLUSION OF LAW The criteria for recognition of D.J. as the child of the Veteran for purpose of additional VA disability compensation, including on the basis of permanent incapacity for self-support prior to attaining the age of 18, not been met. 38 U.S.C. § 101(4) (2012); 38 C.F.R. § 3.57(a) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 decision of a VA Regional Office (RO). The Veteran testified at an October 2021 Travel Board hearing before the undersigned Veterans Law Judge. 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 D.J. as the child of the Veteran for purpose of additional VA disability compensation, including on the basis of permanent incapacity for self-support prior to attaining the age of 18. The Veteran seeks to establish recognition of his stepson, D.J., as his dependent child for VA purposes on the basis of permanent incapacity for self-support prior to attaining the age of 18. After careful review of the record, the Board finds that recognition of D.J. as the Veteran's dependent 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). A "stepchild" may be the legitimate or illegitimate child of the Veteran's spouse. See 38 U.S.C. § 101(4)(A)(iii); 38 C.F.R. § 3.57(a), (b). In addition, such "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. After a careful review of the record, the Board finds that D.J. is the biological child of the Veteran's wife, D. See D.J.'s birth certificate, received by VA in October 2021. The Veteran and D. were married in July 2013. See May 2017 VA Form 21-686c. D.J. was born in February 1981. He turned 18 years old in February 1999. Id. As such, it is uncontested that D.J. was 32 years old at the time of his mother's July 2013 marriage to the Veteran. There is no dispute as to the facts of the Veteran's claim. Instead, the Veteran argues that D.J. should be considered his dependent child as he is the Veteran's stepchild and was permanently incapable of self-support prior to attaining the age of 18. Unfortunately, the enabling statute pertaining to the definition of a 'child' for VA purposes is specific in its terms. Congress has specifically described and designated the category of persons who may be recognized as a dependent for payment of additional VA disability compensation. See 38 U.S.C. § 101(4)(A). The applicable regulation clearly states, in pertinent part, that a child for VA compensation purposes is "a stepchild who acquired that status before the age of 18 years" and "who, before reaching the age of 18 years, became permanently incapable of self-support." See 38 C.F.R. § 3.57. Thus, the plain language of the regulation indicates that both criteria must be met for D.J. to be considered the child of the Veteran for VA compensation purposes. See Petitti v. McDonald, 27 Vet. App. 415, 422-23 (2015) (citing the basic rules of regulatory interpretation, including that the plain meaning of the language of the language is derived from its text and its structure, and that "if the plain meaning is clear from the language, that meaning controls.") For these reasons, the Board finds that D.J. does not meet the criteria for recognition as the Veteran's dependent child for VA purposes, including on the basis of permanent incapacity for self-support prior to attaining the age of 18, as he did not become the Veteran's stepchild prior to the age of 18 years. Consequently, there is no legal basis upon which to recognize D.J. as the Veteran's dependents for VA purposes. The Board sympathizes with the Veteran regarding the inequities he believes result from not being entitled to additional dependency benefits for his stepchild, D.J. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (2012); Burris v. Wilkie, 888 F.3d 1352, 1358 (Fed. Cir. 2018) (holding that "§ 503 provides the Secretary with the authority to grant the precise relief that Appellants request here [payment of moneys], and the Secretary has not delegated that authority"). The Board further observes that "no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress." See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). The Board is bound by the law governing the recognition of dependents for VA purposes in its determination in this case. H.M. WALKER 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.