Helpless Child

[free_spirit_etc]

I am not sure my son will qualify as a Helpless Child for DIC. He was incapable of self-support prior to reaching age 18. And he was adopted by my husband. But based on my reading of the law, I am not sure my son is qualified. – however, I have kept his claim alive because I wasn’t 100% certain, and I didn’t want to give up his right to anything he might be entitled to.

So I am wondering what to do at this point. I am thinking I should withdraw the appeal.

I was going to ask the judge – but getting the VSO kind of ruined being able to ask the judge things. I did specifically ask the VSO, but just like with all the other issues, he didn’t really listen to what I said – He just told me that benefits were based on dependency – and I would need to provide the adoption papers. It is odd, but the only thing the RO required was a copy of the Birth Certificate showing my husband’s name as my son’s legal father.

Edited September 10, 2013 by free_spirit_etc

[broncovet]

Of course, I dont know your child. However, if you are fairly certain your child does not meet the criteria, then I would not waste VA's limited resources and drop the claim. Just make sure before you drop the claim.

[free_spirit_etc]

Thanks brocovet! I have read those laws so many times, and always got tangled up in the "subject to the provisions of" clauses. It didn't look like he was eligible, but I kept pursuing the claim in the event I was missing something. Pursuing it was just sending in his claim and proof of disability - and then appealing when they said he wasn't eligible because my husband wasn't service connected.

Edited September 10, 2013 by free_spirit_etc

[Philip Rogers]

Personally, I'd continue the claim. We already know that the VA does not have limited resources, mentioned by broncovet, as we can tell by their bonus system(s). I think there is a chance he could win, so why not pursue it!! jmo

pr

[free_spirit_etc]

I guess that is a good point pr. There don't seem to be many cases on adopted children at the BVA. Most of them are cases for people raising grandchildren that they haven't legally adopted who are seeking equitable relief.

I was actually surprised to have the topic come up at my hearing because they didn't send the correct information for the notification letter for child's benefits. So they sent another letter later telling me they had left some things off and that I had more time to reply. So I have been separate SOCs on the helpless child issue and have had to file separate appeals. I haven't actually received notice that the helpless child issue was set for a hearing. But the judge did ask questions about my son and said he had a Form 9 for it. But the appeal on this claim was running a year behind my own DIC claim - so I was surprised it even came up at this hearing.

[Philip Rogers]

Besides, withdrawing the claim is a "for sure" loss!

pr

[Berta]

I hesitate sometimes to post links to the regs or to VA Case Law here at hadit ...because they can become overwhelming.

M21-1MR Helpless Child regulations:

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCsQFjAA&url=http%3A%2F%2Fwww.benefits.va.gov%2Fwarms%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart3%2Fsubptiii%2Fch07%2Fch07.doc&ei=MHgwUuCiFOfR2wXLmYDoBQ&usg=AFQjCNEniieNhWPhLppO88Y1U201oTQgbg&bvm=bv.51773540,d.b2I

M21-1MR, Part III, Subpart iii, Chapter 7

The truth is however, many of us would be in the crapper if we didn't take the time to fully assess whatever applied to our claims in either M21-1MR or 38 CFR ...........(I use both)

because these regulations often allude the VA...to our detriment.