Citation Nr: 21031224 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-22 950A DATE: May 20, 2021 ORDER Entitlement of additional dependency compensation for the Veteran's stepchild, N.S., including on the basis of permanent incapacity for self-support prior to reaching age 18, is denied. FINDINGS OF FACT 1. The Veteran's stepchild is not a member of his household and has not been at any time during the appeal period. 2. The Veteran did not adopt his stepchild. CONCLUSION OF LAW The criteria for entitlement of additional dependency compensation for the Veteran's stepchild, N.S., including on the basis of permanent incapacity for self-support prior to reaching age 18, have not been met. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57, 3, 356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA applies to the instant claim. VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify in this case was satisfied by a letter sent to the Veteran in January 2014. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The claim was last adjudicated in December 2020. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In that regard, lay statements of the Veteran, N.S., and K.P. have been associated with the record. Attempts were made to obtain medical records from the Social Security Administration (SSA), however, the SSA notified VA that no medical records were available. In October 2019 and August 2020, the Board remanded the claim to ask the Veteran to provide authorizations to obtain medical treatment records for N.S. VA sent the Veteran such requests and the Veteran responded with authorizations that were inadequate. After affording the Veteran a reasonable period to respond after the August 2020 remand, VA returned the case to the Board. Accordingly, there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). As will be explained further below, the case turns on undisputed evidence that N.S. is not a member of the Veteran's household and has not been during the period of the appeal. As such, the issue is being denied as a matter of law. Therefore, the duty to assist is not applicable. See 38 C.F.R. § 3.159 (b)(3)(ii); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 1. Entitlement of additional dependency compensation for the Veteran's stepchild, N.S., including on the basis of permanent incapacity for self-support prior to reaching age 18. The Veteran seeks to add N.S. to his compensation award as a dependent. He identified her as a stepchild and asserts that she has been mentally and physically disabled prior to reaching 18 years of age. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. 38 U.S.C. § 1115. One type of dependent is a child. Id. For VA purposes, a child is defined as an unmarried person who is (i) a legitimate child, (ii) a child legally adopted before the age of 18 years, (iii) 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 (iv) an illegitimate child; AND is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self-support (i.e. a so called "helpless child"); or (iii) after attaining the age of 18 years and until completion of education or training (but not after attaining 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(a). The allowance is generally discontinued when a dependent child turns 18, or when the child turns 23 if he or she is enrolled in school. 38 C.F.R. §§ 3.503, 3.667 (2020). The Board concludes that the Veteran's stepdaughter is not a member of the Veteran's household and has not been during the appeal period. Accordingly, she does not qualify as a child for the purposes of additional dependency compensation. The record shows that N.S. was born in April 1985, to her mother G.W.S. No father was identified on the birth certificate. In his March 2012 claim for additional dependency compensation, the Veteran identified N.S. as a stepchild. G.W.S. and the Veteran were married at the time of N.S.'s birth, yet he was not identified as the father. Thus, N.S. is not a legitimate child of the Veteran. He did not report that he adopted her. The Veteran filed his claim for additional dependency compensation in March 2012. At that time, he reported that N.S. was living with friends and a relative in another town. This shows that N.S. was not a member of the Veteran's household at the time he was seeking dependency compensation. On other occasions throughout the appeal period, the evidence shows that N.S. was not a member of the Veteran's household. In a March 2013 telephone call with the Veteran, VA confirmed that N.S. did not live with the Veteran, but instead lived with K.P. Birth certificates on file indicate K.P. is the stepsister of N.S. In a January 2017 statement from N.S., she reports that she does not hear from her stepfather much and she reported that she was not in the same household as the Veteran. In a January 2014 statement, the Veteran stated that N.S. was a member of "the household" prior to age 18. However, the regulations require that N.S. be a member of the household at the time the Veteran is awarded dependency compensation. Specifically, the regulations require that a stepchild is one who acquired that status before the age of 18 years and who is a member of the veteran's household. (Emphasis added). Because N.S. is not currently a member of the Veteran's household, she does not qualify as a stepchild for VA dependency compensation purposes. Regarding whether N. S. can be recognized as a helpless child of the Veteran, under 38 C.F.R. § 3.57(a)(3), the term "child" can also include a person who became permanently incapable of self-support before reaching the age of 18 years, who was a member of the Veteran's household at the time he or she became 18 years of age, and who was adopted by the Veteran regardless of the age of such person at the time of the adoption. Even if she were part of the Veteran's household prior to turning 19, as noted above, the Veteran has not adopted N.S. Therefore, the question of whether she became incapable of self-support prior to reaching the age of 18 is not relevant. The August 2020 Board remand directed that VA resend the Veteran authorization forms for N.S.'s medical records to assist with determining whether she was permanently incapable of self-support prior to reaching age 18. On the same date as the issuance of the Board remand, VA received a statement from the Veteran that N.S. would not sign the medical record authorizations he had previously been provided. Later in August 2020, VA sent the Veteran additional authorization forms and requested he submit them. The Veteran submitted an authorization signed by himself, but he did not properly identify the medical provider. In October 2020, VA notified him to submit new forms because the old forms had expired. In November 2020, VA notified the Veteran that the previous authorization forms did not have the address of the facility. The Veteran did not respond prior to the issuance of the December 2020 Supplemental Statement of the Case (SSOC) and transfer of the case to the Board. Subsequently, the Veteran submitted additional medical authorizations. Under other circumstances, the Board might be required to remand the case for the development of the medical records consistent with the authorizations the Veteran provided after the December 2020 SSOC. Here, however, because the Board bases its decision on the fact that N.S. is not a member of the Veteran's household and he has not adopted her, it does not need to decide the question of whether N.S. was permanently incapable of self-support prior to reaching 18. Therefore, the Board need not remand the claim to attempt to obtain medical records for N.S. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.