Citation Nr: 22018962 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 19-05 805 DATE: March 30, 2022 ORDER Entitlement to Dependency Indemnity Compensation and Chapter 35 education benefits as the dependent child of the Veteran is denied. FINDING OF FACT Appellant is not a child of the Veteran; she was adopted by the Veteran's spouse more than two years after the Veteran's death. CONCLUSION OF LAW The criteria for entitlement to Dependency Indemnity Compensation and Chapter 35 education benefits as the dependent of the Veteran have not been met. 38 U.S.C. §§ 101(4)(A), 3501(a)(1)(A), 5107; 38 C.F.R. §§ 3.57, 3.102, 3.210. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from June 1956 to August 1979. The Veteran died in May 2014. The Appellant is the Veteran's granddaughter and the adopted daughter of the Veteran's surviving spouse (her grandmother). The Appellant testified before the undersigned Veterans Law Judge at a December 2021 Board Hearing. The claims file contains a transcript of the hearing. The Appellant alleges that she is entitled to DIC and Chapter 35 education benefits as the dependent of the Veteran. See November 2017 VA Form 21-534 (seeking DIC benefits); July 2018 Notice of Disagreement (disagreeing with denial of DIC); September 2018 Notice of Disagreement (disagreeing with denial of DIC and Chapter 35 education benefits). She has argued that she lived with the Veteran prior to reaching the age of majority and prior to his death, that he provided support to her during that time, that he intended to adopt her prior to his death, and that the Veteran's surviving spouse (her grandmother) adopted her and, therefore, she should be considered the child of the Veteran and qualifies as an eligible claimant entitled to DIC and/or Chapter 35 education benefits. See, generally, December 2021 Board Hearing. An "eligible person" for purposes of Chapter 35 education benefits includes, most relevantly, "a child of a person who, as a result of qualifying service (i) died of a service-connected disability." 38 U.S.C. § 3501(a)(1)(A). VA regulations define "child" as including 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. 38 C.F.R. § 3.57(a)(1) (also including additional criteria). For purposes of determining entitlement to benefits based on a child's school attendance, the term child of the veteran also includes "the following unmarried persons: (i) A person who was adopted by the veteran between the ages of 18 and 23 years. (ii) A person who became a stepchild of the veteran between the ages of 18 and 23 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." 38 C.F.R. § 3.57(a)(2). A stepchild is defined as a legitimate or illegitimate child of the veteran's spouse. 38 C.F.R. § 3.57(b). The definition of adopted child is detailed. First, it 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. 38 C.F.R. § 3.57(c). Moreover, the term adopted child 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, and (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. The Appellant is the Veteran's and his surviving spouse's natural born granddaughter. The Appellant and her adoptive mother (also grandmother) testified that the Veteran intended to adopt Appellant prior to his death in May 2014, but was unable to do so because of the service-connected illness that ultimately caused his death. December 2021 Board Hearing; see also August 2018 VA Form 21-4138 ("I am providing a statement from his spouse to verify that this was a planned adoption."); August 2018 Statement of Veteran's Spouse (stating Veteran planned to adopt Appellant prior to his death and that her own adoption of Appellant was delayed by her own diagnosis with and treatment for cancer). The evidence also establishes that the Appellant lived with the Veteran at the time of the Veteran's death and she did not receive recurring contributions of sufficient size to constitute the major portion of her support from anyone other than the Veteran and the Veteran's spouse. See, e.g., December 2021 Board Hearing; August 2018 Statement of Veteran's Spouse (II). Importantly, as to a child adopted by the veteran's surviving spouse after the veteran's death, the statement of the adoptive parent or custodian of the child will be accepted in absence of information to the contrary, to show that the child was a member of the veteran's household at the date of the veteran's death and that recurring contributions were not being received for the child's maintenance sufficient to provide for the major portion of the child's support, from any person other than the veteran or surviving spouse or from any public or private welfare organization which furnished services or assistance to children. 38 C.F.R. § 3.210(c)(2). Consequently, the determinative issue is whether the Appellant "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." 38 C.F.R. § 3.57(c)(2). The Veteran died May 2014. See June 2014 Death Certificate. The final order of adoption was issued on May [REDACTED], 2017. See May 2017 Final Order of Adoption of Adult. The record does not contain any documentation of an interlocutory decree of adoption or any indication that the Veteran or his spouse formally initiated the adoption process prior to his death. In these circumstances, the Board is constrained to find that the Appellant does not meet the definition of child under 38 C.F.R. § 3.57. Because the Appellant does not qualify as an eligible claimant for the benefits she seeks, her claim must be denied. The Board is sympathetic to the Appellant and her claim. However, being bound by the law, the Board is without authority to grant benefits on an equitable basis, including deeming the Appellant a child of the Veteran for purposes of eligibility for DIC and/or Chapter 35 education benefits. See 38 U.S.C. § 503; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (holding that the Board is not entitled to grant equitable relief, but that all such requests must be presented directly to the Secretary of the Department of Veterans Affairs). Duties to Notify and Assist The Appellant has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to discuss VA's compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.