Citation Nr: 0810223 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 06-14 065A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether the veteran's son is entitled to recognition a helpless child of the veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran served on active duty from October 1948 to April 1955. This matter came to the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2006, the veteran testified before a Hearing Officer at the RO, and the veteran also testified at a Travel Board hearing before the undersigned Veterans Law Judge in November 2006. In December 2006, the Board granted a motion to advance the veteran's case on the Board's docket. The Board remanded the case in January 2007, and it is now before the Board for further appellate consideration. FINDINGS OF FACT The veteran's son, K., was permanently incapable of self- support due to mental or physical defect prior to his attainment of the age of 18 years. CONCLUSION OF LAW The criteria for entitlement of the veteran's son, K., as a helpless child permanently incapable of self-support prior to the attainment of 18 years of age have been met. 38 U.S.C.A. §§ 101(4)(A), 5107 (West 2002); 38 C.F.R. §§ 3.57, 3.356 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION In a letter dated in March 2004, the RO provided the veteran with notice of the information and evidence necessary to substantiate his claim for recognition of his son as a helpless child. Further discussion of the Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & West Supp. 2007) and 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2007), and VA's compliance therewith, is not necessary in this instance, as the record permits a grant of the benefit sought on appeal. VA law provides that 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 or an illegitimate child; and is under the age of 18 years; or before reaching the age of 18 years, became permanently incapable of self-support; or after reaching the age of 18 years and until completion of education or training, but not after reaching the age of 23, is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4); 38 C.F.R. § 3.57. The veteran contends that his son, K., became permanently incapable of self-support before the age of 18 years, which, if supported by the evidence, would 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 an individual 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. The United States Court of Appeals for Veterans Claims (Court) has held that in cases such as this, the focus of analysis must be on the individual's condition at the time of his or her 18th birthday in order to determine whether that individual is entitled to the status of "child." See Dobson v. Brown, 4 Vet. App. 443, 445 (1993). In other words, for purposes of initially establishing helpless child status, the individual'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. A hospital birth record shows that the veteran's son, K., was born in April 1969. As such, his permanent incapacity for self-support must be demonstrated by April 1987. The evidence shows that in May 1984, when he was 14 years old, the veteran's son was certified as a member of a class of children in his state with handicapping conditions described as complex, of long-standing duration, and requiring the intervention and support of numerous health care service providers over extended periods. The state mental health agency described the veteran's son as suffering from severe separation anxiety disorder and secondary adolescent anti-social behavior, which was situation-specific to his family and home. It was stated that in addition to violent, destructive, and self-injurious behavior at home, the son exhibited underlying depression, severe emotional withdrawal, distorted body perceptions, strong bodily fears, and extreme immaturity and dependency. He controlled his home situation via tantrums, threats, and suicidal statements. The records show that the son began sleeping with his parents in their bed at age 1 and that the mother and father stopped sleeping together when the son was 8. The son continued sleeping with his mother until he was 15 years old. The records report various ages at which the son was weaned from the bottle, ranging from 6 to 12 years of age. The record includes reports that at age 8 the son was the victim of sexual abuse by a teen-age boy. The veteran's son's truancy from school reportedly began at age 11 and continued thereafter. He missed 123 of 180 days in the l982-1983 school year. Mental health treatment records show that at age 16, the son refused mental health treatment or state special education services for several months. A client capacity checklist dated in April 1987, the month of the son's 18th birthday lists the son's emotional weaknesses as including extreme denial, egocentric narcissism, outbursts of anger at home, along with acting out and demanding behavior. It was also noted the son had no pre-vocational skills and had no desire to work. Later records show the son was awarded a GED and had some training in turf management, but it is reported that his only work for more than a week or two was for about 10 weeks when he was under the supervision of his sister at a Denny's restaurant where she was a manager. More recent records show psychiatric assessments noting the son's reports that he can't stand to be with people and those records report the son having anger that continues for days and poor impulse control with daily thoughts of self harm. The diagnoses include: major depression, recurrent; post-traumatic stress disorder; dysthymic disorder, early onset; and personality disorder, not otherwise specified, (anti-social and narcissistic traits). In addition, the record includes statements from acquaintances of K, attesting to having known him for years and stating he has been unable to work. There is evidence of the veteran's son receiving Social Security Administration (SSA) benefits. The veteran has testified that in the years before his son reached the age of 19, the son was receiving Social Security benefits because of the veteran's own disability and that after a lengthy appeals process, the son, with the veteran's assistance, was granted Social Security benefits based on his mental disability and the determination he was totally disabled. The veteran also testified that the veteran does not have a court-appointed guardian. He testified that his son's Social Security benefits had been taken away and that matter was on appeal, but because of privacy laws and his son's failure to cooperate, he does not have access to SSA records. The Board notes that over the course of the appeal VA has made a total of six attempts to obtain pertinent SSA records. The efforts resulted in replies from SSA that the records were in different locations, pending on appeal, available for review and copy at personal cost to the veteran/son, available for review by VA at the local SSA office in Winston-Salem, and most recently SSA reported it was unable to locate medical records. Based on this lack of success, the Board concludes that further efforts to obtain the SSA records would be futile. See 38 C.F.R. 3.159. The extensive evidence of evaluation and treatment of the veteran's son's condition prior to, and at the time of, his 18th birthday leads the Board to the finding that he was not capable of self-support due to his emotional and psychiatric disabilities at that time. Although the record shows that at the time of his 18th birthday, he indicated he had no desire to work and he later was a awarded a GED, the evidence shows continuing diagnoses of significant psychiatric disease and serious personality disorder along with the failure of the son to maintain any sort of gainful employment for more than a short period except in what would reasonably be considered a sheltered environment. Although it has not been possible to obtain SSA records to corroborate the veteran's testimony as to the nature and duration of SSA benefits received by his son, the Board accepts his statements and testimony as credible on that front and as to his son's behavior and condition before and since his 18th birthday. To the extent that the evidence is in relative equipoise, the Board resolves all reasonable doubt in favor of the veteran and finds that the veteran's son, K., became permanently incapable of self-support before reaching the age of 18. The Board therefore concludes that the veteran's son is a helpless child. ORDER The veteran's son is entitled to recognition as a helpless child of the veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs