Citation Nr: 0707632 Decision Date: 03/14/07 Archive Date: 03/20/07 DOCKET NO. 05-04 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether C. may be recognized as a helpless child of the veteran. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. B. Freeman, Associate Counsel INTRODUCTION The veteran served on active duty from September 1953 to September 1973. The appellant is the veteran's spouse and fiduciary. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, which denied recognition of C. as the veteran's helpless child. FINDINGS OF FACT 1. C. was born on September [redacted], 1979. 2. Prior to October [redacted], 2000, C. was enrolled at Texas A&M University. 3. C. has been adjudicated to be incapacitated by reason of a motor vehicle accident occurring on October [redacted], 2000. 4. C. has not been shown to have been permanently incapable of self-support by reason of a mental or physical condition prior to attaining the age of eighteen. CONCLUSION OF LAW The criteria for entitlement to VA benefits for C. as a helpless child of the veteran have not been met. 38 U.S.C.A. § 101(4)(A) (West 2002); 38 C.F.R. § 3.356 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Helpless Child The term "child" for purposes of Title 38 of the United States Code is specifically defined. For purposes of determining eligibility as a claimant under Title 38, a child must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A)(ii) (West 2002); 38 C.F.R. §§ 3.57(a)(1), 3.356 (2006). The appellant contends that C. became permanently incapable of self-support while between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution, which should render him a child of the veteran for VA purposes under 38 U.S.C.A. § 101(4)(a)(ii). To establish entitlement to the benefit sought on the basis of being a helpless child, various factors under 38 C.F.R. §3.356 are for consideration. Principal factors for consideration are: (1) The fact that a claimant is earning his or her own support is prima facie evidence that he or she is not incapable of self-support. Incapacity for self-support will not be considered to exist when the child by his or her own efforts is provided with sufficient income for his or her reasonable support. (2) A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of 18 years, may be so held at a later date even though there may have been a short intervening period or periods when his or her condition was such that he or she was employed, provided the cause of incapacity is the same as that upon which the original determination was made and there were no intervening diseases or injuries that could be considered as major factors. Employment which was only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapability of self- support otherwise established. (3) It should be borne in mind that employment of a child prior or subsequent to the delimiting age may or may not be a normal situation, depending on the educational progress of the child, the economic situation of the family, indulgent attitude of parents, and the like. In those cases where the extent and nature of disability raises some doubt as to whether they would render the average person incapable of self- support, factors other than employment are for consideration. In such cases there should be considered whether the daily activities of the child in the home and community are equivalent to the activities of employment of any nature within the physical or mental capacity of the child which would provide sufficient income for reasonable support. Lack of employment of the child either prior to the delimiting age or thereafter should not be considered as a major factor in the determination to be made, unless it is shown that it was due to physical or mental defect and not to mere disinclination to work or indulgence of relatives or friends. (4) The capacity of a child for self-support is not determinable upon employment afforded solely upon sympathetic or charitable considerations and which involved no actual or substantial rendition of services. 38 C.F.R. § 3.356 (2006). The United States Court of Veterans Appeals (Court) has held that in cases such as this, the "focus of analysis must be on the claimant's condition at the time of his or her 18th birthday." Dobson v. Brown, 4 Vet. App. 443, 445 (1993). In other words, for purposes of initially establishing helpless child status, the claimant's condition subsequent to his or her eighteenth birthday is not for consideration. However, if a finding is made that a claimant was permanently incapable of self-support as of his or her eighteenth birthday, then evidence of the claimant's subsequent condition becomes relevant for the second step of the analysis, that is, whether there is improvement sufficient to render the claimant capable of self-support. Id. If the claimant is shown to be capable of self-support at eighteen, VA is required to proceed no further. Id. The facts of this case are not contested. C. was born on September [redacted], 1979. In the fall of 2000, C. was enrolled as an undergraduate at Texas A&M University. On October [redacted], 2000, C. was in a motor vehicle accident and suffered significant brain trauma. In January 2002, C. was adjudicated to be an incapacitated person by the Probate Court of Miller County, Arkansas. Legal guardianship was granted in favor of the veteran and the appellant. After a full review of the record, including the contentions and statements of the appellant, the Board concludes that the claim must be denied. The facts show that C. was not incapacitated prior to his eighteenth birthday. On the contrary, he graduated from high school and had matriculated at Texas A&M University. C. was incapacitated by a motor vehicle accident which occurred shortly after his twenty first birthday. By regulation, a child is the offspring of the veteran under the age of eighteen, or between 18 and 23 while enrolled in pursuing a course of instruction at an approved educational institution. See 38 U.S.C.A. § 101(4)(A)(ii) (West 2002); 38 C.F.R. §§ 3.57(a)(1), 3.356 (2006). By this measure, C. was a child of the veteran at the time of his accident. However, the veteran was not receiving VA disability compensation at that time, so the status of C. in 2000, while he was attending school, is not relevant here. To be a helpless child of the veteran, and for the veteran to now be awarded additional benefits based on that fact, C. must have been permanently incapacitated as of his eighteenth birthday. See 38 C.F.R. § 3.356(a). As C. was not incapacitated as of September 27th, 1997, he cannot be found to be a helpless child within the meaning of the regulation. Accordingly, the Board has no choice but to deny the claim. The Board extends its deepest sympathies to the appellant. The Board is aware that since the incapacitation of C., the veteran has also become incapacitated and that the appellant is the care provider for her husband and her son. The law allows the Board no room for discretion on this point, and the case cannot be resolved in favor of the appellant. II. Veterans Claims Assistance Act With respect to the claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to initial adjudication of the instant claim, a letter dated in February 2004 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The appellant was aware that it was ultimately her responsibility to give VA any evidence pertaining to the claim. The February 2004 letter told her to provide any relevant evidence in her possession. See Pelegrini II, at 120-121. Since the Board has concluded that the preponderance of the evidence is against the claim for recognition of a helpless child, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d) (2006). Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2006). The Board concludes VA's duty to assist has been satisfied. C.'s treatment notes, school records and court documents are of record. The Board concedes every fact alleged by the appellant. No further assistance in acquisition of records or provision of an examination could alter the outcome of this case, as discussed above. See Dobson v. Brown, 4 Vet. App. 443, 445 (1993). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Recognition of C. as the veteran's helpless child is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs