Citation Nr: A21020124 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 201210-123455 DATE: December 16, 2021 ORDER Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is denied. FINDING OF FACT The appellant is the Veteran's granddaughter and was not legally adopted by the Veteran. CONCLUSION OF LAW The criteria for entitlement to DEA benefits are not met. 38 U.S.C. § 101(4); 38 C.F.R. §§ 3.57, 21.3021(a)(1). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to November 1969. He filed an appeal on behalf of his granddaughter. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2020 determination letter by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA)'s decision on their claim to seek review. The September 2020 determination letter was timely appealed the decision to the Board on a VA Form 10182 and direct review of the evidence considered by the AOJ was requested. This decision is written consistent with the new AMA framework. In adjudicating the claim, the Board may consider evidence associated with the record prior to September 30, 2020, the date VA issued a decision denying this claim. The Board only may consider argument submitted after that date. DEA benefits are payable to a child of a veteran who died of a service-connected disability, who died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability, a veteran who has a total disability permanent in nature resulting from a service-connected disability, or a person who is on active duty as a member of the Armed Forces and who now is, and, for a period of more than 90 days, has been, listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign government or power. 38 C.F.R. § 21.3021(a)(1). VA law provides that the term "child" means 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 or an illegitimate child; and is under the age of 18 years; or before reaching the age of 18 years, became permanently incapable of self-support; or after reaching the age of 18 years and until completion of education or training, but not after reaching the age of 23, is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57. Of note, in an October 2020 statement, the Veteran contends that his granddaughter should be entitled to DEA benefits because he was told by VA that since he had legal guardianship over his granddaughter, she would be receiving college benefits. He stated that he and his wife have raised his granddaughter since she was one year old and have had legal guardianship since she was three years old. Relatedly, in the case of a veteran who wished to establish dependency status for a dependent grandchild in order to obtain benefits under 38 U.S.C. § 1115, the United States Court of Appeals for Veterans Claims (Court) determined that the definition of the term "child" under 38 U.S.C. § 101(4) excludes a grandchild who has not been adopted. See generally O'Brien v. Wilkie, 30 Vet. App. 21 (2018). In so finding, the Court acknowledged that although excluding from 38 U.S.C. § 1115 individuals over whom a veteran has guardianship is no longer logical, it is a policy question, and the Court is unable to provide equitable relief in such matters. Id. at *11. Here, the Veteran has a total rating due to service-connected disability, and the only issue before the Board at this time is whether the Veteran's granddaughter and dependent, is the Veteran's "child" within the meaning of the relevant law and regulations. The record includes Letters of Guardianship that show that the appellant has been in the Veteran's custody since December 2003 and throughout her childhood. However, it is not disputed that the appellant was not legally adopted by the Veteran, as there is no copy of an adoption decree in the record. Thus, she does not qualify as a dependent child for VA purposes. In light of the foregoing, the Board finds that the present appeal must be denied as a matter of law. See id. While the Board is sympathetic to the appellant's claim, the requirements of 38 C.F.R. § 3.57 are not met. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.