Citation Nr: 21010646 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-24 564A DATE: February 25, 2021 ORDER Entitlement to recognition of J.M. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is denied. FINDING OF FACT J.M. is the Veteran’s legitimate child but was adopted out of the family of the Veteran prior to the filing of the present claim. CONCLUSION OF LAW The criteria for recognition of J.M. as a “helpless child” of the Veteran have not been met. 38 U.S.C. § 101(4)(A) (2012); 38 C.F.R. §§ 3.57, 3.58, 3.210, 3.356 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1976 to December 1977 and from August 1979 to February 1980. Unfortunately, she died in September 2016. The appellant is her surviving adult daughter and has been properly substituted as claimant in the claim addressed herein. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this case has a complicated procedural history. For clarity, the Board will briefly summarize herein the relevant procedural history. At the time of her September 2016 death, the Veteran had a pending appeal as to the issues of entitlement to service connection for torticollis, special monthly compensation (SMC) based on the Veteran’s need for aid and attendance, and recognition of J.M. as the Veteran’s helpless child. In December 2016, H.M. requested to be recognized as the substitute claimant to continue the Veteran’s pending claims on appeal to completion. In a January 2017 decision, the RO recognized H.M. as the substitute claimant. In March 2017, the Veteran’s surviving adult daughter, the appellant, also requested to be recognized as the substitute claimant to continue the Veteran’s pending claims on appeal to completion. In an August 2018 decision, the Board remanded the issue of entitlement to recognition of the appellant as substitute claimant, to include whether VA’s recognition of H.M. as substitute claimant was proper. The Board also found that the Veteran’s pending claims on appeal were intertwined with this substitution issue, and remanded the pending claims on appeal. In a May 2020 decision, the RO recognized the appellant as the substitute claimant to continue the Veteran’s pending claims on appeal to completion, thereby removing H.M. as the substitute claimant. That same month, H.M. appealed this decision. In a separate decision, the Board has found that H.M. is not entitled to recognition as the substitute claimant to continue the Veteran’s pending claims on appeal to completion. Therefore, the present appeal is no longer considered a contested claim. The appellant has another appeal before the Board; however, as that appeal involves issues dependent on different facts and law than considered and applied herein, it will be the subject of a separate decision. 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.M. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18. The appellant contends that J.M. was rendered incapable of self-support prior to attaining the age of 18. An additional amount of compensation may be payable for a child where a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). The term “child” is defined, for purposes of Veterans’ benefits, 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 or was a member of the Veteran’s household at the time of the Veteran’s death, or an illegitimate child and who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self-support; or (iii) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57. However, for the purposes of any benefits provided under 38 U.S.C. § 1115, the term child does not include a child of a veteran who is adopted out of the family of the veteran. 38 C.F.R. § 3.57(a)(4). Furthermore, a child of a veteran adopted out of the family of the veteran is not a child within the meaning of § 3.57 for purposes of any benefits provided under 38 U.S.C. § 1115. 38 C.F.R. § 3.58(b). After a careful review of the record, the Board finds that recognition of J.M. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is not warranted. In this case, it is clear that J.M. is the legitimate child of the Veteran. See April 2001 VA Form 21-526, Veteran’s Application for Compensation and/or Pension. However, the weight of the evidence reflects that J.M. was adopted out of the Veteran’s family prior to the filing of the present claim. See August 1997 medical treatment record for J.M. (indicating that J.M. was adopted out of the Veteran’s family when he was 3 years old and the Veteran had not had any contact with him for 17 years); May 2012 VA PTSD examination report (indicating that J.M. was adopted out of the Veteran’s family sometime between 1981 and 1983); and March 2008 VA treatment record for the Veteran (noting that all of her children had been adopted out of her family). The Board further notes that in a March 1982 VA Form 22-1990, Veteran’s Application for Educational Benefits, the Veteran indicated that her children were not in her care at this time. The Board finds this evidence to be credible and highly probative evidence that J.M. was adopted out of the Veteran’s family prior to the filing of the present claim, as the evidence is consistent over many years, from multiple individuals, and given for the purpose of medical treatment. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994). 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). Although J.M. is clearly the Veteran’s legitimate child, recognition of J.M. as the Veteran’s child is clearly barred under 38 C.F.R. §§ 3.57(a)(4) and 3.58(b). Therefore, as a matter of law, the claim of entitlement to recognition of J.M. as the Veteran’s helpless child for VA benefits purposes must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board sympathizes with the appellant regarding the inequities she believes result from not being entitled to additional dependency benefits for this child. 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. Romina A. Casadei Acting 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.