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M21-1, Part III, Subpart iii, Chapter 5, Section I – Establishing Parental Relationship

Overview


In This Section

This section contains the following topics:

1.  Definitions and General Guidelines


Introduction

This topic contains definitions and general guidelines related to the establishment of parental relationships, including

Change Date

February 19, 2019

III.iii.5.I.1.a.  Definition:  Parent

The term parent is defined in 38 CFR 3.59 and includes the following:
  • a biological parent
  • an adoptive parent, and
  • a foster parent.
Reference:  See M21-1, Part III, Subpart iii, 5.I.6.a for a definition of foster parent.

III.iii.5.I.1.b.  Definition:  Dependent Parent

The term dependent parent does not necessarily mean that the parent is not self-supporting.  Rather, it means that either
  • the parent’s income and net worth are minimal, or
  • a parent with substantial income or assets has correspondingly high expenses.

III.iii.5.I.1.c.  Distinction Between Relationship and Dependency

Relationship concerns an individual’s legal status with respect to the Veteran, that is, whether the individual may be recognized as the Veteran’s parent.
The issue of dependency
  • is a question of whether or not a parent is financially dependent, and
  • requires consideration of the parent’s assets and expenses.
The issue of dependency is always secondary to that of relationship.  Benefits may not be paid to or for a dependent parent unless the parent-child relationship is established.

III.iii.5.I.1.d.  Avoiding Unnecessary Development

In all cases, a parent’s financial situation is a factor in establishing entitlement.
Do not undertake development to establish the relationship between Veteran and parent if the
  • evidence of record indicates the parent’s income may exceed the applicable income limit (in a Parents Dependency and Indemnity Compensation (DIC) case), and
  • parent is not “dependent” according to the provisions of 38 CFR 3.250.
Important: When processing a claim for Parents DIC, concede the claimant’s status as a parent if the Department of Veterans Affairs (VA) was paying the Veteran on whose death the DIC claim is based additional disability compensation for the parent at the time of the Veteran’s death.

III.iii.5.I.1.e.  Forms Claimants Must Use to Apply for Benefits

Effective March 24, 2015, a claimant must submit the prescribed form from among those listed in M21-1, Part III, Subpart ii, 2.B.1.b, to claim entitlement to
  • additional disability compensation for a dependent parent, or
  • DIC as the parent of a Veteran.
Notes:
Reference:  For information about adding a dependent to a beneficiary’s award, see M21-1, Part III, Subpart iii, 5.L.

III.iii.5.I.1.f.  Propriety of Telephone Contact With a Claimant

Regional office employees may contact a claimant by telephone to obtainclarification of information the claimant provided on a form.  They may not, however, utilize telephone contact to complete a form on a claimant’s behalf.
Exception:  See M21-1, Part III, Subpart iii, 5.A.4.h, for an exception to the policy expressed in this block.

2.  Determining Entitlement


Introduction

This topic contains information on

Change Date

June 7, 2018

III.iii.5.I.2.a.  Determining When Benefits Are Payable to or for a Parent

VA may pay additional disability compensation to a Veteran for his/her parent(s) only if the Veteran has a combined disability rating (based on a service-connected (SC) disability or disabilities) of at least 30 percent.
VA may pay survivors benefits to a Veteran’s parent only if the Veteran’s death was SC.
VA may not pay additional disability pension to a Veteran for his/her parents.

III.iii.5.I.2.b.  Considering Need as a Factor in Determining Entitlement

Always consider need when determining whether benefits are payable to or for a parent.

III.iii.5.I.2.c.  Death Benefits for a Dependent Parent

The parents of a deceased Veteran whose death was SC are eligible for death compensation or DIC.
Note:  Death compensation is an older VA benefit that is payable if the Veteran died before January 1, 1957.
Reference:  For more information on death benefits, see

III.iii.5.I.2.d.  Determining Entitlement to DIC

A parent’s net worth is not a factor in determining entitlement to DIC.  The rate of DIC payable is based on the parent’s countable income.
If the parent’s countable income exceeds the applicable income limit, DIC is notpayable even if the Veteran’s death was SC.
Reference:  For more information about DIC income computations, see

III.iii.5.I.2.e.  Determining Entitlement to Death Compensation and Additional Disability Compensation

Death compensation and additional disability compensation are payable to or for a parent only if the parent is dependent.  Always establish need when determining entitlement to these benefits.
Reference:  For information on the issue of a parent’s dependency, see

3.  Effect of Court Judgments


Introduction

This topic contains information on the effect of court judgments, including

Change Date

June 7, 2018

III.iii.5.I.3.a.  Establishment of a Parental Relationship by a Court

In a suit in which the United States is a party, parental relationships may be established by a judgment of a Federal court.
Follow the court’s findings and conclusions for the purpose of determining entitlement to VA benefits, even though the court’s determination may relate to other benefits.

III.iii.5.I.3.b.  Determining When an Administrative Decision Is Required

The preparation of an administrative decision is required if
  • an individual’s status as a foster parent is denied
  • the authorization activity determines a Veteran’s biological or adoptive parent abandoned the Veteran, or
  • contested claims procedures apply.
References:  For more information on

4.  Establishing an Individual as a Veteran’s Biological Parent


Introduction

This topic contains information on establishing an individual as a Veteran’s biological parent, including

Change Date

June 7, 2018

III.iii.5.I.4.a.  Requirement for Documentary Evidence

Documentary evidence is required to establish an individual as a Veteran’s biological parent.  In most instances, this consists of a copy of the Veteran’s birth certificate.
If a birth certificate is unavailable and the claimant has adequately explained the reason for its unavailability, claims processors may rely on secondary evidence to establish the parental relationship.
Important:  M21-1, Part III, Subpart iii, 5.I.4.c, describes additional evidence a claimant must submit to establish as a Veteran’s biological father an individual who was not married to the Veteran’s biological mother at the time of the Veteran’s birth.
References:  For more information on

III.iii.5.I.4.b.  Primary Evidence of a Parental Relationship

Primary evidence to establish the relationship between a Veteran and his/her biological parent is a copy or abstract of the public record of birth showing the name of the parent.
Use the table below to determine whether a birth certificate is acceptable as primary evidence.
If the birth certificate was …
Then it is acceptable …
created more than four years after the date of birth
only if it is consistent with evidence of record in the claims folder.
issued by a hospital
only as secondary evidence.
Reference:  For more information on secondary evidence, see M21-1, Part III, Subpart iii, 5.F.4.c.

III.iii.5.I.4.c.  Establishing as a Veteran’s Biological Father an Individual Who Was Not Married to the Veteran’s Biological Mother at the Time of the Veteran’s Birth

Additional evidence (beyond that discussed in M21-1, Part III, Subpart iii, 5.I.4.a) is required to establish as a Veteran’s biological father an individual who was notmarried to the Veteran’s biological mother at the time of the Veteran’s birth.  That evidence consists of certified statements of two disinterested persons indicating the individual assumed the legal and moral obligations of a parent by living with the Veteran or providing financial support for the Veteran at substantially all times from the date of the Veteran’s birth until the date the Veteran
  • reached age 21
  • married, or
  • entered military service.
Notes:
  • Request the statements referenced in the preceding paragraph from the claimant.
  • If the certified statements do not confirm the existence of a parental relationship, request a field examination.
  • VA may recognize as a Veteran’s foster parent (father) an individual who
    • was not married to the Veteran’s biological mother, and
    • did not support the Veteran at substantially all times.
Reference:  For more information on recognizing a foster parent as a parent for VA purposes, see M21-1, Part III, Subpart iii. 5.I.6.

5.  Establishing a Parental Relationship Through Adoption


Introduction

This topic contains information on establishing a parental relationship through adoption, including

Change Date

June 7, 2018

III.iii.5.I.5.a.  Status of a Parent of an Adopted Veteran

A person who adopts a Veteran has the same status as the Veteran’s biological parent.

III.iii.5.I.5.b.  Establishing an Adoptive Parent’s Relationship to a Veteran

To establish that an individual is the adoptive parent of a Veteran, request a copy of the final decree of adoption.  There is no requirement to obtain this document if it
  • may not routinely be released by the custodian of the records, or
  • may be released only upon petition to the court.
A copy of an interlocutory adoption decree or an adoptive placement agreement, alone, is not sufficient to establish the parental relationship.
References:  For information on how to establish a

III.iii.5.I.5.c.  Considering Impounded Adoption Records

If the final adoption decree referenced in M21-1, Part III, Subpart iii, 5.I.5.b, may not routinely be released, claims processors may rely on the following alternative evidence to establish the parental relationship:
  • a copy of the Veteran’s revised birth certificate, and
  • statements of at least two disinterested parties who have personal knowledge of the adoption.
Notes:
  • Request the evidence referenced in the preceding paragraph from the claimant.
  • Obtain statements from officials involved in the adoption, if possible.
  • If the alternative evidence is not available or is deemed inconclusive, request an examination of the impounded record by a field examiner.

III.iii.5.I.5.d.  Requirements in Foreign Adoption Cases

If an individual living outside the U.S. adopted a Veteran, VA will recognize the individual as the Veteran’s adoptive parent only if the following requirements are met in addition to the other requirements set forth in this topic:
  • the individual must have adopted the Veteran before the Veteran’s 21st birthday
  • the individual must have provided one half or more of the Veteran’s annual support from the date of adoption until the date the Veteran
    • reached age 21
    • married, or
    • entered military service, and
  • the Veteran must not have been in the custody of a biological parent at the time of the adoption unless the biological parent is the adoptive parent’s spouse.

6.  Establishing a Foster Parent as a Veteran’s Parent for VA Purposes

 


Introduction

This topic contains information on establishing a foster parent as a Veteran’s parent for VA purposes, including

Change Date

February 19, 2019

III.iii.5.I.6.a.  Definition:  Foster Parent

foster parent is a person who stands in place of a Veteran’s parent for a continuous period of at least one year.
  • The one-year period must
    • start before the Veteran’s 21st birthday, and
    • continue for one year before the Veteran entered active duty.
  • The one-year period may end after the Veteran’s 21st birthday, as long as the requirements set forth in the previous bullet are met.
Note:  A public or private institution cannot be a foster parent for VA purposes even if the institution is caring for the Veteran in loco parentis.
References:

III.iii.5.I.6.b.  Definition:  In Loco Parentis

The term in loco parentis simply means “in place of a parent” and it refers to the foster parent relationship for VA purposes.

III.iii.5.I.6.c.  Definition:  Relinquishment of Parental Control

The term relinquishment of parental control means
  • the parent has ceased to provide for the child, and
  • the normal parent-child relationship has been broken.
It does not necessarily mean that a court has terminated parental rights.
Relinquishment of control does not necessarily imply abandonment on the part of the biological or adoptive parent.  However, a finding that a parent abandoned a child automatically establishes relinquishment of control.
Reference:  For more information about the distinction between relinquishment of control and abandonment, see M21-1, Part III, Subpart iii, 5.I.8.

III.iii.5.I.6.d.  Issues That Arise When an Alleged Foster Parent Is the Same Sex As a Biological or Adoptive Parent

If a biological or adoptive parent of the same sex as the alleged foster parent was living at the time a foster parent relationship is alleged to have arisen, relinquishment of parental control by the biological or adoptive parent must be proven before the foster parent relationship may be established.
If a biological or adoptive parent of the same sex as the alleged foster parent is living at the time an alleged foster parent files a claim for survivors benefits, treat the claim as a contested claim even if the biological or adoptive parent has not filed a claim.
References:

III.iii.5.I.6.e.  Example:  Relinquishment of Control by a Biological Parent

Situation:
  • Gwen and Wayne file a claim for Parents DIC.
  • Subsequent development reveals Gwen and Wayne are the deceased Veteran’s grandparents.
  • Gwen and Wayne allege that their daughter, Barbara, and her husband, Tom, the Veteran’s biological parents, did not support or maintain regular contact with the Veteran after the Veteran finished elementary school.
  • Gwen and Wayne claim they stood in the relationship of parents to the Veteran for more than one year before the Veteran entered active duty.
Action:  Contact Tom and Barbara, if their addresses are known, and give them an opportunity to refute Gwen and Wayne’s allegations.
Result:  Contested claims procedures apply.  If Gwen and Wayne’s allegations are proven to be true, VA may recognize them as the Veteran’s foster parents.

III.iii.5.I.6.f.  Establishing a Brother or Sister as a Foster Parent

VA may establish a Veteran’s brother or sister as the Veteran’s foster parent if the evidence shows
  • the sibling stood in place of a parent to the Veteran, and
  • all requirements as to the one-year period of the relationship are met.
Reference:  For more information on the one-year period, see M21-1, Part III, Subpart iii, 5.I.6.a.

III.iii.5.I.6.g.  Processing a Claim for Survivors Benefits From an Alleged Foster Parent

Follow the steps in the table below to process a claim for survivors benefits from an individual who claims to be the foster parent of a deceased Veteran.
Step
Action
1
If the claimant is seeking entitlement to DIC, proceed to the next step.  Otherwise, proceed to Step 3.
2
Does the claimant’s income exceed the limit referenced in M21-1, Part III, Subpart iii, 5.I.2.d?
  • If yes,
    • deny the claim for DIC, and
    • proceed to Step 13.
  • If no, proceed to Step 4.
3
Is the claimant dependent, per M21-1, Part III, Subpart iii, 5.I.2.e?
  • If yes, proceed to the next step.
  • If no,
    • deny the claim for death compensation, and
    • proceed to Step 13.
4
5
Does the evidence of record indicate the alleged foster parent stood in the place of the Veteran’s parent for the one-year period referenced inM21-1, Part III, Subpart iii, 5.I.6.a?
  • If yes, proceed to the next step.
  • If no, proceed to Step 12.
6
Was a biological or adoptive parent of the same sex as the alleged foster parent living at the time the foster parent relationship is alleged to have arisen?
  • If yes, proceed to Step 10.
  • If no, proceed to the next step.
7
Must VA treat the alleged foster parent’s claim as a contested claim, per the principle discussed in M21-1, Part III, Subpart iii, 5.I.6.d?
  • If yes,
    • undertake the development actions described inM21-1, Part III, Subpart vi, 6.B, and
    • proceed to the next step after the earlier of the following occur:
      • all parties to the contested claim respond to the development actions, or
      • 30 days pass after giving all parties to the contested claim an opportunity to respond to the development actions.
  • If no,
    • award survivors benefits, and
    • proceed to Step 13.
8
Prepare an administrative decision according to the instructions in M21-1, Part III, Subpart vi, 6.C.1.a and b.
9
Take the actions described in M21-1, Part III, Subpart vi, 6.C.2-4 and disregard the remaining steps in this table.
10
  • Fully develop the facts concerning relinquishment of control.
  • Obtain the certified statement of the biological or adoptive parent, if possible.
  • Request a field examination, if necessary.
11
Does the evidence of record indicate the Veteran’s biological or adoptive parent (whichever applies) relinquished parental control?
  • If yes, go back to Step 7.
  • If no, proceed to the next step.
12
  • Prepare a two-signature administrative decision using the format referenced in M21-1, Part III, Subpart v, 1.A.3.
  • Following approval of the decision by the Veterans Service Center Manager (VSCM), deny the claimed benefit.
Note:  VSCMs may delegate authority to approve the decision to a supervisor not lower than a coach.
13
Notify the claimant of the decision.
Reference:  For more information about notifying claimants of a VA decision, see M21-1, Part III, Subpart v, 2.B.

III.iii.5.I.6.h.  Processing a Claim for Additional Disability Compensation for an Alleged Foster Parent

Follow the steps in the table below to process a Veteran’s claim for additional disability compensation for an individual the Veteran claims is his/her foster parent.
Step
Action
1
Does information the Veteran provided on the prescribed form show the alleged foster parent is dependent, per M21-1, Part III, Subpart iii, 5.I.2.e?
  • If yes, proceed to the next step.
  • If no,
    • deny the Veteran’s claim for additional disability compensation, and
    • proceed to Step 8.
2
  • Send VA Form 21P-524 to the Veteran for completion within 30 days.
  • Proceed to the next step after the earlier of the following occurs:
    • the Veteran returns VA Form 21P-524, or
    • 30 days pass without a response from the Veteran.
Note:  VA Form 21P-524 was designed for completion by a parent seeking entitlement to survivors benefits.  When sending the form to a Veteran, ask that the alleged foster parent complete the form as if he/she were filing a claim for survivors benefits.
3
Does the evidence of record indicate the alleged foster parent stood in the place of the Veteran’s parent for the one-year period referenced in M21-1, Part III, Subpart iii, 5.I.6.a?
  • If yes, proceed to the next step.
  • If no, proceed to Step 7.
4
Was a biological or adoptive parent of the same sex as the alleged foster parent living at the time the foster parent relationship is alleged to have arisen?
  • If yes, proceed to the next step.
  • If no,
    • award additional disability compensation to the Veteran for the foster parent, and
    • proceed to Step 8.
5
  • Fully develop the facts concerning relinquishment of control.
  • Obtain the certified statement of the biological or adoptive parent, if possible.
  • Request a field examination, if necessary.
6
Does the evidence of record indicate the Veteran’s biological or adoptive parent (whichever applies) relinquished parental control?
  • If yes,
    • award additional disability compensation to the Veteran for the foster parent, and
    • proceed to Step 8.
  • If no, proceed the next step.
7
  • Prepare a two-signature administrative decision, using the format referenced in M21-1, Part III, Subpart v, 1.A.3.
  • Following approval of the decision by the VSCM, deny the Veteran’s claim for additional disability compensation for the alleged foster parent.
Note:  VSCMs may delegate authority to approve the decision to a supervisor not lower than a coach.
8
Notify the Veteran of the decision.
Reference:  For more information about notifying claimants of a VA decision, see M21-1, Part III, Subpart v, 2.B.

7.  VA’s Policy of Recognizing Only One Father and One Mother of a Veteran

 


Introduction

This topic contains information regarding VA’s policy of recognizing only one father and one mother of a Veteran, including

Change Date

June 7, 2018

III.iii.5.I.7.a.  Handling Cases in Which Two Persons of Same Sex Claim to be the Veteran’s Parent

A situation might arise where two persons of the same sex claim to have been the parent of a Veteran and meet the basic definition of a parent.  In this instance, the qualifying person who last bore the relationship of parent to the Veteran, before the Veteran entered active duty, is recognized as the Veteran’s parent for VA purposes.
Note:  Only one father and one mother may be recognized for VA purposes.
Reference:  For an example of a situation where two persons of the same sex claim to have been the parent of a Veteran, see M21-1, Part III, Subpart iii, 5.I.7.b.

III.iii.5.I.7.b.  Example: Two Persons of the Same Sex Claim to Be the Veteran’s Parent

Situation:
  • The Veteran’s biological father abandons the Veteran at age nine.
  • An uncle assumes the responsibilities of a foster parent until the Veteran’s 17th birthday.
  • The biological father then resumes the parental role until the Veteran enters active duty at age 19.
Result:
The biological father is recognized as the parent for VA purposes because he
  • meets the legal requirements of a parent, and
  • was the last person to bear the relationship of father to the Veteran before the Veteran entered active duty.

III.iii.5.I.7.c.  Considering the Legal Termination of a Biological Parent’s Parental Rights

A biological parent whose parental rights have been terminated by a court may still be recognized as a parent for VA purposes if the person was the last one to bear the relationship of parent to the Veteran before the Veteran entered active duty.

III.iii.5.I.7.d.  Example: Legal Termination of a Biological Parent’s Parental Rights

Situation:
A court terminates the Veteran’s biological mother’s parental rights when the Veteran is eight years old.  The Veteran is then adopted.  The adoptive parents die and the biological mother assumes responsibility as the Veteran’s parent before the Veteran entered active duty at age 18.
Result:
The biological mother qualifies as the Veteran’s parent for VA purposes.
Note:  In this situation the biological parent’s parental rights were legally terminated, but the parent still qualifies as the Veteran’s parent for VA purposes.

8.  Abandonment of a Veteran by His/Her Parent


Introduction

This topic contains information on the abandonment of a Veteran by his/her parent, including

Change Date

June 7, 2018

III.iii.5.I.8.a.  How Abandonment Affects Entitlement to Benefits

A biological or adoptive parent who refused to assume the legal and moral obligations of a parent is not entitled to VA benefits.
Notes:
  • It is not necessary to show someone else assumed the role of parent in place of the biological parent.
  • The authorization activity determines the issue of whether or not the parent abandoned the Veteran.
Reference:  For more information on administrative decisions related to abandonment, see M21-1, Part III, Subpart iii, 5.I.8.h.

III.iii.5.I.8.b.  How to Differentiate Between Relinquishment of Control and Abandonment

For VA purposes
  • a parent who relinquishes control of the Veteran fails to support the Veteran, while
  • abandonment implies more than a mere failure to provide for the Veteran; it implies a refusal to do so.

III.iii.5.I.8.c.  Example:  Relinquishment of Control vs. Abandonment

Situation:
The Veteran’s mother leaves the Veteran’s biological father and lives with another man, John.  They do not marry.  John supports the Veteran and bears the relationship of father to the Veteran.  The mother never asks the biological father to support the Veteran and he never offers to do so.
Result:
In this case, the biological father may have relinquished control of the Veteran, but there is nothing to suggest he abandoned the Veteran.
The table below describes the results of possible scenarios in a case such as this.
If …
Then …
John filed a claim for VA benefits as a foster parent
relinquishment of control by the biological father may be established.
the biological father filed a claim for VA benefits
VA may not deny entitlement because of abandonment.
both men filed claims for VA benefits as the parent of the Veteran
John would be entitled to benefits because
  • he was the last person to bear the relationship of father to the Veteran, and
  • relinquishment of control by the biological father may be established.

III.iii.5.I.8.d.  Foster Parent and the Relinquishment of Parental Control

If another person of the same sex claims to have been the Veteran’s foster parent, the issue of whether the biological or adoptive parent abandoned the Veteran need not be considered.
Under these circumstances, the issue is merely whether or not the biological or adoptive parent relinquished parental control.

III.iii.5.I.8.e.  Foster Parent and Abandonment

The authorization activity must resolve the issue of abandonment if no person of the same sex has claimed a foster parent relationship to the Veteran, but
  • the biological or adoptive parent has filed a claim, and
  • there is evidence or a credible allegation of abandonment.

III.iii.5.I.8.f.  Parents DIC Claims and Alleged Abandonment

If a person entitled to DIC as the parent of a deceased Veteran alleges abandonment by the other parent, the authorization activity must resolve the issue regardless of whether or not the other parent has filed a claim for Parents DIC.
Note:  Contested claims procedures apply because VA must pay a lower rate of Parents DIC to the claimant if he/she is one of two parents (instead of a sole surviving parent).
References:  For more information on

III.iii.5.I.8.g.  Developing a Case Involving Abandonment by a Parent

Fully develop the facts surrounding an allegation that a Veteran’s parent  abandoned the Veteran, to include
  • the age of the Veteran when the parent abandoned the Veteran
  • all of the circumstances surrounding the abandonment, and
  • whether or not the parent subsequently furnished any support, including the
    • extent of the support, and
    • dates the parent provided support.
Note:  Request from the claimant the information referenced in the preceding paragraph by telephone or locally generated letter.

III.iii.5.I.8.h.  Administrative Decisions Regarding Abandonment by a Parent

After determining benefits are not payable to a biological or adoptive parent because of abandonment, prepare a two-signature administrative decision, using the format in M21-1, Part III, Subpart v, 1.A.3.  The issue is abandonment by a parent.
VSCMs may delegate authority to approve the decision to a supervisor not lower than a coach.
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