20 CFR 404.1101(e)(3)
The general issue is whether the claimant is entitled to child's insurance benefits under section 202(d) of the Social Security Act. The specific issue is whether the child was the "child" of the deceased wage earner as defined in section 216(h)(3)(C) of the Social Security Act.
Section 216(h)(3)(C) of the Social Security Act (the Act) provides that an applicant who is the son or daughter of a fully or currently insured individual but does not qualify as a child under State law shall, nevertheless, be considered the child os such insured individual if, in the case of a deceased individual:
The undisputed facts in this case support the conclusion that the provisions of part A above have been met.
The record contains two documents which are tantamount to acknowledgement by the decedent that the claimant, "C", is his daughter.
The first document is a VA application for compensation, signed by the deceased and containing a statement that C is his child. Although this application was never actually submitted to the VA for processing, it nevertheless constitutes an acknowledgement signed by the wage earner. The fact that this document was never filed or the fact that it was never sworn to before a notary public is of no consequence. The statute merely calls for a written acknowledgement. The application is a written acknowledgement and unless it can be proven to be something other than the wage earner's written acknowledgement, it will comply with the law.
It should be noted that the authenticity of the wage earner's signature on this application was never disputed. In fact, the decedent's estranged wife testified that in her opinion it was, in fact, his signature.
As previously stated, the Act only requires an acknowledgement in writing -- it does not require any validation by an agency or any filing of any sort. Short of proof of forgery, this document constitutes the necessary acknowledgement in writing to meet the requirements of the Act.
The second document was obtained upon further investigation with the VA. It is an application received by that agency in September of 1974, one month before the wage earner's death. It reveals that three children were listed thereon, the third of whom was C, "child by paramour." This application was signed by the deceased and dated September 11, 1974. The validity of this document has been questioned by the estranged wife commencing with the signature which she says is a "peculiar signature (which) has no similarity to the writing on the rest of the form." Admittedly, the signature does not resemble any other signature of the wage earner in the record and especially not the signature of the earlier VA application (which was never submitted to the VA). It should be noted that the signature was written only one month before the decedent's death, and he had at that time been ill with cancer since at least the early part of the year. A weak scrawl such as shown on this document could easily be the result of his lingering illness and the fact that he was almost at the point of death. Therefore, there being no evidence on the record to the contrary (but mere conjecture) the signature is accepted as genuine.
The point was also raised that there was no evidence as to when the bulk of the form was filled out, and no evidence that the person who signed it knew what the rest of the form stated or had ever read it or had signed it after the rest of the form was filled out. "At the time," it was argued, the wager earner "was close to death, was confused and had cerebral metastatic disease. It is doubtful he knew what he was doing and eventually lapsed into a coma." In response, it must be acknowledged that the form was obviously not completed by the deceased if his signature is taken, as it must be, as an indication of his writing ability at that time. However, it is not uncommon for another person (such as a clerk) to write on an application the answers as supplied by the person who will sign the application. And in this case, where the wage earner was no doubt very ill, it could be expected that someone else would write down the answers as he gave them. However, this in no way proves that he did not or could not furnish the information; that he did not see the answers which were put down; or that he signed a blank application and was never aware of what answers were placed on the application later. Even the fact that the birthdates for the other two children are incorrect while the birthdate of C is correct falls short of establishing that this is not a valid document. Many times male claimants, while remembering exactly the date of entering military service and date of discharge, have trouble remembering other pertinent dates including the date of marriage and the birthdates of their children and their wives and even sometimes their own birthdates. Therefore, the mention of incorrect birthdates should not be a controlling factor in deciding whether this document is valid.
(Further, it should be noted that the second application was received by the VA before the wage earner's death. This is not decisive, however, for the law does not require that the written acknowledgement be in the form of a document submitted to a government agency or any other part.) Thus no sufficient basis was discovered for deciding that either application for VA benefits should not be accepted as credible evidence of an acknowledgement, in writing, by the wage earner, that C was his daughter. The burden of offering proof to discredit these documents falls on the estranged wife and she has failed to meet this burden.
In conclusion, neither the Act nor the Regulations (20 C.F.R. 404.1101(e)(3)) requires that the acknowledgement be executed in any special way. Any statement written by the wage earner, or at this direction, which acknowledges (as do the documents in this case) the claimant as the wage earner's son or daughter is sufficient acknowledgement in writing to satisfy the statutory requirement. See Social Security Ruling 1977-23 (at page 18). See also Social Security Ruling 1966-47(14) where a document was produced from the Department of Public Welfare records which listed each of four children by name and showed each as a son or daughter of the decedent and showed the decedent as the father of each child. It was there held that since the document identified the four children by name, identified the decedent as the father of each child, and was signed by the decedent, it constituted an "acknowledgement in writing" within the meaning of section 216(h)(3)(C).