Citation Nr: 21041063 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-17 339 DATE: July 8, 2021 REMANDED The issue of entitlement to recognition of the appellant as a dependent child of the Veteran, on the basis of permanent incapacity for self-support prior to attaining the age of 18, for VA benefits purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1946 to February 1952, and from February 1958 to June 1966. He died in February 1985. The appellant has filed the instant claim asserting to be the Veteran's surviving child. The appellant testified before the undersigned Veterans Law Judge in June 2020. A copy of the transcript is of record. 1. Recognition of the appellant as the Veteran's child is remanded. The appellant seeks dependency and indemnity compensation (DIC) benefits and VA death pension benefits as the surviving child of the Veteran. DIC is payable to the surviving children of veterans, provided the veteran was discharged or released from active service under conditions other than dishonorable, death was due to a service-connected or compensable disability, or the veteran died while in active service. 38 U.S.C. § 1310. Death pension benefits are generally available for the child of a deceased veteran of a period of war who met the service requirements or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability, and the child is not in the custody of a surviving spouse eligible for pension. 38 U.S.C. § 1542. The child must meet specific income and net worth requirements. 38 U.S.C. §§ 1542, 1543; 38 C.F.R. § 3.3(b)(4). For VA purposes, the term child means an unmarried person who is a legitimate child, a legally adopted child, a stepchild who was a member of the Veteran's household at the time of death, or an illegitimate child (acknowledged by the Veteran either in writing or via court ordered child support) of the Veteran; 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 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57. In this case, the Board must first determine the threshold matter of whether the appellant may be recognized as a proper claimant, before it can consider his claims of entitlement to DIC and death pension on the merits. The evidence reflects that the appellant was born in 1957 and was therefore over 18 years of age at the time the instant claim was submitted. He attests that before the age of 18 years he became permanently incapable of self-support. However, the appellant has not submitted sufficient evidence showing that he was a dependent of the Veteran as defined by regulation. More information is needed regarding the paternity status of the Veteran in relation to the appellant. The only evidence of their relationship is a copy of the Veteran's memorial service pamphlet noting that he is survived by two daughters and four sons, including the name of the appellant. See Obituary submitted October 1985. Although there are copies of his sisters' birth certificates in the record, the appellant's birth certificate is not included. Additionally, any claims previously filed by the Veteran and his surviving spouse made no mention of a son. A remand to obtain the appellant's birth certificate or other evidence noted in 38 C.F.R. § 3.209 is necessary. The Board additionally finds that a remand is required for a medical opinion on the question of whether the appellant was permanently incapable of self-support prior to the age of 18. No medical opinion has yet been rendered on this issue. The matters are REMANDED for the following actions: 1. Request that the appellant provide a copy of his birth certificate or other evidence noted in 38 C.F.R. § 3.209 showing that he is the son of the Veteran, and medical evidence to show that he became permanently incapable of self-support prior to the age of 18. 2. Following the development above, obtain a retrospective opinion to ascertain whether the appellant became permanently incapable of self-support by reason of a mental or physical disability prior to attaining the age of 18 years. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the appellant's satisfaction, send the appellant and his attorney a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.