Establishing Stepchildren as Dependents

VA may accept a Veteran’s lay statement as sufficient proof to establish a stepchild as a dependent. The statement, as required by 38 C.F.R. § 3.204(a)(1), must include the following:

  • Date (month and year) and place of the event
  • the full name and relationship of the other person and claimant and,
  • when the claimant’s dependent child does not reside with the claimant, the name and address of the person who has custody of the child.

The Veteran must also provide the Social Security number of any stepchild that he or she is attempting to establish as a dependent.

VA is required to only develop for evidence of stepchild relationship if the there is a reason to question the validity of the Veteran’s lay statement, such as described in subsection (a)(2) of § 3.204, or if the lay statement submitted by the Veteran does not meet the requirements of §3.204(a)(1).

Disability Benefits Questionnaire (DBQ) Changes Based on Mitchell v. Shinseki

In Mitchell v. Shinseki, 25 Vet.App. 32 (2011), the Veterans Court held that if pain is associated with movement, the examiner must give an opinion on whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time and that such opinion, if feasible, be expressed in terms of the degree of additional range of motion (ROM) loss due to pain on use or during flare-ups.

The Court’s holding requires revisions to joints (DBQs which are required to address functional loss and additional loss of motion after repetitive use. If functional loss or additional loss of motion manifests following repetitive use, the DBQ directs the examiner to identify if any of the factors contained in 38 C.F.R. §§ 4.40 and 4.45 contribute to functional loss or additional loss of motion.

As a result of the Mitchell decision, if any of the §§ 4.40 or 4.45 factors are associated with movement, the examiner must also give an opinion on whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time and that opinion, if feasible, should be expressed in terms of the degrees of additional ROM loss due to “pain on use or during flare-ups.” The examiner must also describe any such additional limitation due to pain, weakness, fatigability or incoordination during flare-ups or when the joint is used repeatedly over time.

Suggested text for entry into Remarks for any musculoskeletal DBQ

When completing any musculoskeletal DBQ, additional information is required to comply with a recent US Court of Appeals for Veterans Claims (CAVC) decision in the case of Mitchell v. Shinseki, relating to functional limitations. In the section of the DBQ titled “Functional loss and additional limitation in ROM,” additional questions must be addressed. For each joint examined, please provide an opinion.

1.Whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time, and

2.Describe any such additional limitation due to pain, weakness, fatigability or incoordination, and if feasible, this opinion should be expressed in terms of the degrees of additional ROM loss due to “pain on use or during flare-ups”.

3.If such opinion is not feasible, please state and provide an explanation as to why the opinion cannot be rendered.

Revision of VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits

Compensation Service revised VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. The new form, dated January 2013, is designed to provide a single application for use by both Veterans and Servicemembers. The new VA Form 21-526EZ will replace VA Forms 21-526, Veterans Application for Compensation and/or Pension, 21-526b, Veteran's Supplemental Claim for Compensation, and 21-526c, Pre-Discharge Compensation Claim. Significant changes include:

  • Adding Servicemember to the form title and revising language to address pre-discharge claims.
  • Adding a “forwarding address” block for pre discharge claimants.
  • Revising the “list of disabilities” block to allow for separate contention entries.
  • Revising “military retired pay language” for clarity.

The form is now available online at Regional offices (ROs), Pension Management Centers (PMCs), and other locations that accept claims are encouraged to use the VA Form 21-526EZ in all public contact work; however, they should continue to accept claims submitted on any approved older versions of the form.