Citation Nr: 0001085 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-01 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to additional Dependency and Indemnity Compensation (DIC) on the basis of an adopted dependent grandchild. REPRESENTATION Appellant represented by: Jewish War Veterans of the United States ATTORNEY FOR THE BOARD W. R. Steyn, Associate Counsel INTRODUCTION The veteran had active military service from December 1950 to September 1952. This appeal arises before the Board of Veterans' Appeals (Board) from a November 1997 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied the appellant's claim seeking entitlement to additional DIC benefits on the basis of an adopted dependent grandchild. In the appellant's December 1997 Substantive Appeal, she requested a hearing at the local office. Such a hearing was scheduled for February 1998, but the appellant had to cancel. In July 1998, the veteran's representative clarified to the Board that no further hearing was desired. FINDINGS OF FACT 1. The veteran died on April [redacted], 1979. 2. Following the veteran's death, the appellant applied for VA burial and death benefits in 1979 and 1980; in her applications, filed over her signature, she did not indicate that she and the veteran had any children during their marriage nor did she indicate that she had any dependent children. 3. In October 1997, the appellant indicated that her granddaughter was a dependent, and that she was born too late to be the veteran's child. 4. On August 18, 1997, the appellant adopted her granddaughter, who was born in 1986. CONCLUSION OF LAW The requirements for recognition of the appellant's granddaughter, S. J. S., as the veteran's child for the purpose of VA benefits have not been met. 38 U.S.C.A. §§ 101 (4), 1311 (b) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.5 (e) (3), 3.57(a), (c), 3.210 (c) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background A copy of a death certificate shows that the veteran died on April [redacted], 1979. In June 1979, the widow submitted an application for burial benefits. There was a section asking whether were any surviving children; however, she left this section blank. In the widow's February 1980 application for DIC, she left the "information concerning children" portion of the application blank. By rating decision dated March 1980, the widow was granted service connection for the cause of the veteran's death. On VA Form 21-686c, Declaration of Status of Dependents, received on October 20, 1997, the appellant listed the name of her granddaughter as a dependent. She noted that the granddaughter was born on November [redacted], 1986, that she had had legal custody of her granddaughter since September 1992, and that she had legally adopted her on August 18, 1997. On VA Form 21-686c, Declaration of Status of Dependents, received on October 24, 1997, the appellant provided the same information as on the Declaration of Status of Dependents form received on October 20, 1997. She attached a copy of a certificate of adoption, showing that she had legally adopted her granddaughter, S. J. S., on August 18, 1997. In the appellant's December 1997 Notice of Disagreement, she stated that she was the surviving spouse of the veteran's household, and was in receipt of DIC benefits as the surviving spouse. She stated that she had not remarried and felt that she had met the requirement under 38 C.F.R. § 3.57 (c) (3). In the appellant's December 1997 Substantive Appeal, she stated that she and her granddaughter were survivors of the veteran's household, and therefore entitlement to additional allowance was in order. In a statement received at the Board in February 1998, the appellant stated that she applied for benefits for her granddaughter whom she had adopted legally in August 1997. She stated that her granddaughter was born in her home and had lived with her for the past 9 years. She stated that the parents of the granddaughter were alcoholics and drug abusers. She stated that the granddaughter was born in November 1986 and was now 11. Analysis Among other requirements, the term "child" means a legally adopted child. A person shall be deemed, as of the date of death of a veteran, to be the legally adopted child of such veteran if such person was at the time of the veteran's death living in the veteran's household and was legally adopted by the veteran's surviving spouse before August 26, 1961, or within two years after the veteran's death; 38 U.S.C.A. § 101 (4) (West 1991). If there is a surviving spouse with one or more children below the age of eighteen of a deceased veteran, the dependency and indemnity compensation paid monthly to the surviving spouse shall be increased by $215 for each such child. 38 U.S.C.A. § 1311 (b) (West 1991 & Supp. 1999). If there is a surviving spouse with one or more children under the age of 18 (including a child not in the surviving spouse's actual or constructive custody), the total amount of DIC payable shall be increased by the amount set forth in 38 U.S.C.A. § 1311 (b) for each child. 38 C.F.R. § 3.5 (e) (3) (1999). 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. 38 C.F.R. § 3.57(c) (1999). 38 C.F.R. § 3.210(c) (1999) provides further guidance regarding the definition and criteria for "adopted child." Except as provided in paragraph (c)(1) of this section evidence of relationship will include a copy of the decree of adoption or a copy of the adoptive placement agreement and such other evidence as may be necessary. 38 C.F.R. § 3.210(c)(2) (1999) provides that 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 child. The appellant contends that her granddaughter is an adopted child for DIC purposes. However, pursuant to 38 C.F.R. § 3.57(c) (1999), in order for the child in question to be the "adopted child" of the veteran, the "child" must have been living in the veteran's household at the time of the veteran's death and must have been 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. The certificate of adoption shows that the appellant adopted her grandchild on August 18, 1997, which was over 18 years after the veteran's death. By the appellant's statements, her granddaughter was not even born until November 1986, which was more than 7 years after the veteran's death. While the circumstances of this particular case are unfortunate, as the appellant's granddaughter was not born until after the veteran's death, there is no possibility that the appellant's granddaughter may be deemed the adopted child of the veteran. Accordingly, the criteria for recognition of the appellant's granddaughter as the "adopted child" of the veteran have not been satisfied. 38 U.S.C.A. § § 101 (4), 1311 (b) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.5 (e), 3.57(c), 3.210(c) (1999). ORDER Entitlement to additional DIC benefits on the basis of an adopted dependent grandchild is denied. G. H. SHUFELT Member, Board of Veterans' Appeals