Citation Nr: 21040529 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 17-17 511 DATE: July 5, 2021 ORDER Entitlement to Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is denied. FINDING OF FACT 1. The Veteran, who in the appellant's grandfather, was the joint legal guardian/custodian of the appellant, he did not legally adopt the appellant. 2. The appellant was not legally adopted by her grandmother. 3. The appellant lacks the requisite legal status to be eligible for DEA benefits. CONCLUSION OF LAW The claim of entitlement to Chapter 35 DEA benefits is without legal merit. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.57 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1979 to April 1985. He died in August 2016. The appellant in this case is the Veteran's granddaughter. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2016 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, in which the RO determined that the appellant could not be approved for payment of DEA benefits. The appellant disagreed with that decision and perfected an appeal to the Board. In May 2021, the appellant and her grandmother testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Eligibility for DEA Benefits Chapter 35 benefits may be paid to a child or surviving spouse of a veteran who was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability; or (2) a permanent total service-connected disability was in existence at the date of the veteran's death; or (3) died as a result of a service-connected disability; or, (4) if a service member is on active duty as a member of the Armed Forces and (i) for a period of more than 90 days, has been listed by VA as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power; or (ii) has been determined by VA to have a total disability permanent in nature incurred or aggravated in the line of duty during active service, is hospitalized for such service, is likely to be discharged or released from active service for such disability, and the pursuit of a course of education for which DEA benefits are sought occurred after December 22, 2006. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021. A review of the record shows that, during his lifetime, the Veteran was service connected for emphysema with chronic obstructive pulmonary disease, which had been evaluated as 100 percent disabling since August 5, 1997. Basic eligibility for DEA benefits had also been established, effective February 3, 2020, the date upon which the Veteran's total, 100 percent rating was considered to be permanent. In May 2016, the appellant filed an application for DEA benefits. On that application, the appellant indicated that she was the child of the Veteran. In response to the appellant's application, the agency of original jurisdiction (AOJ) requested additional information, to include the appellant's birth certificate or church record of baptism showing the names of both of her parents. In July 2016, the appellant submitted a copy of a "Custody/Visitation Order," dated in April 2007, showing that the Veteran and his wife, B.B., the appellant's grandfather and grandmother, were granted joint legal custody of the appellant, with the grandmother having physical custody of the appellant. The appellant also provided her birth certificate, showing that she was born to the daughter of the Veteran. In August 2016, the AOJ denied entitlement to DEA benefits. Specifically, it was stated that her entitlement to such could not be approved because the Veteran was the appellant's grandfather and the evidence failed to show that the appellant was a legally adoptive child, a natural child, or a stepchild of the Veteran. In disagreeing with the denial of DEA benefits, the appellant submitted a statement from her grandmother B.B. who reported that she was first granted guardianship and custody of the appellant in 1996, when the appellant was only two months old. B.B. then noted that the appellant's mother died in 2003, at which time she was granted sole custody. B.B. had sole custody of the appellant until 2007 when joint legal custody was awarded to B.B. and the Veteran. B.B. stated that the appellant had always been viewed as a dependent for tax purposes and that she had been recognized as a dependent in the Defense Enrollment Eligibility Reporting System (DEERS) database. Additionally, during her May 2021 hearing, the appellant reported that she had been a member of the Veteran's household since she was six weeks old. It was noted that her grandparents did not adopt her because she was getting social security benefits due to the fact that her mother had died. The appellant stated, however, that she had always been considered the Veteran's dependent and that she had believed that she would be entitled to VA educational assistance benefits given her status as such. She further reported that she had been issued a military identification card identifying her as a dependent of the Veteran. As noted above, the Veteran, during his lifetime, was found to have a permanent total service-connected disability; it was also determined that he died as a result of a service-connected disability. As such, DEA benefits may be paid to a child of the Veteran. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021. In this regard, the Board notes that "child" means the son or daughter of a veteran who meets the requirements of 38 C.F.R. § 3.57, except as to age and marital status. 38 C.F.R. § 3.807(d). Excluding age and marital status from the definition of child, 38 C.F.R. § 3.57, provides that a "child" is "a legitimate child", "a child legally adopted", "a stepchild 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". 38 C.F.R. § 3.57(a). The relevant regulation further defines that the term "adopted child" means "a child adopted pursuant to a final decree of adoption, a child adopted pursuant to an unrescinded interlocutory decree of adoption while remaining in the custody of the adopting parent (or parents) during the interlocutory period, and a child who has been placed for adoption under an agreement entered into by the adopting parent (or parents) with any agency authorized under law to so act, unless and until such agreement is terminated, while the child remains in the custody of the adopting parent (or parents) during the period of placement for adoption under such agreement." 38 C.F.R. § 3.57(c). The term adopted child also includes, "as of the date of death of a veteran, such a child who: (1) was living in the veteran's household at the time of the veteran's death, (2) was adopted by the veteran's spouse under a decree issued within 2 years after August 25, 1959, or the veteran's death whichever is later, and (3) was not receiving from an individual other than the veteran or the veteran's spouse, or from a welfare organization which furnishes services or assistance for children, recurring contributions of sufficient size to constitute the major portion of the child's support." Id. In this case, the appellant believes that she is entitled to DEA benefits on the basis that the Veteran had been her legal caretaker and guardian since April 2007 and that she had been a member of the Veteran's household since 1996, when she was two months old. These facts are not in dispute as the evidence establishes that the Veteran's spouse (the appellant's grandmother) was awarded temporary guardianship/custody of the appellant in April 1996 and that the Veteran and his spouse were awarded joint legal custody of the appellant in April 2007. Here, however, although the appellant was a member of the Veteran's household and the Veteran had legal custody of the appellant, the law requires that to be entitled to DEA benefits as a "child" of a veteran, the individual must be a biological child, an adopted child, or a stepchild. In this case, none of the foregoing is alleged or shown. Per the legal documents, the Veteran and his spouse were established as guardians/custodians of the appellant, but no decree of legal adoption of the appellant was ever sought or obtained. Indeed, the appellant does not dispute that she was not legally adopted by her grandfather, the Veteran, or her grandmother. The Board also concedes that a legal guardian/custodian is not specifically excluded from the list of eligible DEA recipients; however, a legal guardian is not among those who are affirmatively included and evidence that the guardianship and/or custody agreements in place is equivalent or tantamount to legal adoption is wholly lacking. Further, although the appellant may have been considered as the Veteran's dependent for tax purposes, that fact is not dispositive of whether there is a qualifying relationship between the appellant and the Veteran for the specific purpose of establishing entitlement to DEA benefits. Indeed, status as a dependent for Internal Revenue Service purposes does not establish status as a "child" under DEA for VA purposes, as VA has set forth specific definitions of "child". Additionally, the DEERS database is maintained by the Department of Defense (DoD) and not by VA. DoD allows the service member to seek dependent status for a minor child for whom that service member has legal custody or guardianship for the purposes of authorizing them to receive Uniformed Services benefits and privileges. This does not, however, bestow benefits for VA purposes especially where, as here, the relationship between the appellant and Veteran is not one from which eligibility for DEA benefits can be derived. The Board is sympathetic to the appellant's position and commends the appellant for her educational pursuits. Unfortunately, however, because the appellant cannot be considered the Veteran's "child" for purposes of entitlement to DEA benefits, the appellant is not entitled to the benefit sought as the criteria for such have not been met. The Board lacks the legal authority to award benefits outside the scope of the law and has no authority to grant claims on an equitable basis. See 38 U.S.C. § 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994) ("No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress"). The Board regrets that it cannot render a favorable decision on this matter, however, the applicable laws and regulations simply do not provide for the establishment of the appellant's basic eligibility for DEA benefits. As this claim must be denied as a matter of law, the benefit of the doubt rule is not for application. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.