Citation Nr: 21025277 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-24 893A DATE: April 27, 2021 ORDER Entitlement to recognition of D.M. as the Veteran's dependent child for the purposes of eligibility and entitlement to VA dependency benefits is denied. FINDINGS OF FACT 1. The Veteran died in September 2005. 2. The appellant is the Veteran’s surviving spouse. 3. D.M. is not the Veteran’s biological child or his stepchild. 4. There was no final decree of adoption, unrescinded interlocutory decree of adoption, or adoption agreement entered into by the appellant with any agency authorized under law establishing that D.M. was adopted by the appellant within two years of the Veteran’s death. CONCLUSION OF LAW The criteria for recognition of D.M. as a dependent child of the Veteran for the purpose of eligibility or entitlement to VA benefits have not been met. 38 U.S.C. §§ 101(4), 1311(b), 5103, 5103A, 5107; 38 C.F.R. §§ 3.5, 3.57(c), 3.210(c). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1970 to January 1973. Regrettably, he died in September 2005. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant challenged this decision and in her substantive appeal to the Board, she elected to appear before a Veterans Law Judge at a hearing. She was notified of the time and place of the hearing at her address of record in correspondence in September 2019. The appellant did not attend the scheduled hearing and has not requested a rescheduling of the hearing or provided an explanation for her absence. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704. Entitlement to recognition of D.M. as the Veteran’s dependent child The appellant was previously awarded death pension benefits in a decision from December 2005. At that time, she was informed that D.M. could not be considered a dependent child of the Veteran as she had not yet been adopted. She submitted a new claim for recognition of D.M. as the Veteran’s “child” for the purposes of death pension benefits in September 2013. At that time, she explained that she and the Veteran had been in custody of D.M. since birth and that she had adopted D.M. in 2008. In her substantive appeal, the appellant again reiterated that D.M. had been a part of her household since she was an infant and that she and the Veteran had cared for her until his death, after which she continued to support D.M. As such, she contended that she should be awarded VA dependent benefits for her. After reviewing the pertinent evidence of record, the Board finds that the appellant’s claim must be denied as a matter of law. The appellant seeks recognition of D.M. as the Veteran’s child in connection with her receipt of death pension benefits. The law allows for a higher rate of death pension benefits to a surviving spouse if there is a child of the veteran in the custody of the surviving spouse. 38 U.S.C. § 1541. D.M. was born in July 1998. As such, she attained age 18 in July 2016, during the course of the present appeal. The statute governing whether an individual under the age of eighteen can be considered a “child” on the basis of adoption by a veteran who has died requires that that minor was legally adopted by the veteran at the time of his or her death or within two years after the veteran’s death. See 38 U.S.C. § 101(4)(A)(iii). This statute further clarifies that an individual may be considered legally adopted if there was an interlocutory decree of adoption that had been issued by an appropriate adoption authority, unless and until that decree is rescinded, where the child remains in custody of the adopted parent or parents during the interlocutory period. Id. Additionally, a person who was placed for adoption under an agreement entered into by the adopting parent or parents with any agency authorized to so act will also be considered to be a “legally adopted child” starting from the date of that agreement if the child remains in custody of the adopting parent. Id. The implementing regulation largely reiterates 38 U.S.C. § 101 and defines an adopted child as: (1) a child adopted pursuant to a final decree of adoption; (2) a child adopted pursuant to an unrescinded interlocutory decree of adoption while remaining in the custody of the adopting parent during the interlocutory period; or (3) a child who had been placed for adoption under an agreement entered into by the adopting parent with any agency authorized under law to so act. 38 C.F.R. § 3.57(c). A legally adopted child includes, as of the date of the death of a veteran, a child who was living in the veteran’s household at the time of the veteran’s death, was adopted by the veteran’s spouse under a decree issued within 2 years of the veteran’s death (or after August 25, 1959), and was not receiving major financial contributions to the child’s support from another source. 38 C.F.R. § 3.57(c)(2). The facts in this case are not in dispute, while the appellant has been consistent in her statements that she and the Veteran have cared for D.M. since the time she was an infant, the appellant does not contest the fact that D.M. was not adopted until July 2008. The final order of adoption in the claims file confirms that date. That date was more than two years after the Veteran’s death in September 2005. As such, D.M. cannot, as a matter of law, be considered the Veteran’s child on the basis of adoption. The law has no provision extending the two-year period between a death of the veteran and the final decree of adoption in those circumstances. Regardless of the equities of the Veteran’s situation, however, VA can only allow benefits that are explicitly authorized. See Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (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) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). The Board recognizes that the Veteran and the appellant have also been legal custodians of D.M. and cared for her since birth. The Board recognizes that the strict rules regarding dependency may appear harsh and fail to consider the extent to which many familial situations consist of grandparents who have sole custody of their grandchildren. See O’Brien v. Wilkie, 30 Vet. App. 21, 30 (2018). Unfortunately, as the United States Court of Appeals for the Federal Circuit has made clear, the Veteran’s Benefits adjudication system currently precludes the Board from finding that dependency exists pursuant to 38 U.S.C. § 101 (4)(A) in such circumstances. O’Brien v. Wilkie, 948 F.3d 1339, 1342 (Fed. Cir. 2020). For the foregoing reasons, the appellant’s claim is denied as a matter of law. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Whitelaw, 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.