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

[free_spirit_etc]

Thanks Berta. I am sorry I already had edited my initial post, editing out a lot of personal information.

Thanks for the links. I have already read most of the information in 38 CFR. Thus far, my son's claim has only been denied on the basis that my husband wasn't service connected for the cause of his death. But I haven't been too concerned about showing that my son was disabled prior to reaching the age of 18. I never had a fight with Social Security in regard to finding my son disabled. Their own doctors determined he was disabled when he was 14. My concern about eligibility for the VA is based on his age when he became a member of the veteran's household. My son was over 18 when I met my husband. From everything I read, he would be eligible in respect to being incapable of self-support before the age of 18, and he would be eligible in respect to being my husband's adopted child. But from everything I read, a helpless child has to have been a member of the veteran's household prior to the age of 18 in order to qualify. I kept hoping that maybe I missed something.

[free_spirit_etc]

(a) General. (1) Except as provided in paragraphs (a)(2) and (3) of this section, the term child of the veteran means an unmarried person who is 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; and...

(3) Subject to the provisions of paragraphs © and (e) of this section, the term child also includes a person who became permanently incapable of self-support before reaching the age of 18 years, who was a member of the veteran's household at the time he or she became 18 years of age, and who was adopted by the veteran, regardless of the age of such person at the time of adoption.

© Adopted child. Except as provided in paragraph (e) of this section, the term 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. The term 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.