Citation Nr: 0812053 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 06-12 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to helpless child benefits on the basis of permanent incapacity for self-support before attaining the age of 18. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from January 1966 to November 1967. The child in question is his son. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2004 rating decision of the San Diego, California, regional office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The veteran's son was born on May [redacted], 1976, and attained the age of 18 on May [redacted], 1994. 2. The veteran's son was initially diagnosed as having Non- Hodgkin's lymphoma on or about June 28, 1999, when he was 23. 2. The veteran's son 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 as a helpless child of the veteran have not been met. 38 U.S.C.A. § 101(4)(A) (West 2002 & Supp. 2005); 38 C.F.R. § 3.356 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Proper VCAA notice 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) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2007). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. In this case, notification of the evidence necessary to substantiate the claim for recognition of the veteran's son as a helpless child was provided in a November 2003 letter dated prior the initial adjudication of the veteran's claim. The veteran was also provided with a preadjudication VCAA letter in October 2003 after he initially inquired about benefits for his son. This letter informed the veteran that VA would obtain service records, VA records, and records from other Federal agencies, and that with his authorization VA would obtain private medical records on his behalf or he could submit the records. The letter informed the veteran that it was his responsibility to provide all requested records not in the possession of a Federal agency. This notified the veteran that he should send any relevant evidence in his possession. The veteran was provided with more explicit notification that he should send any relevant information in his possession in a June 2005 letter dated after the initial rating action. This timing deficiency was remedied by the fact that the veteran's claim was readjudicated by the RO in March 2006, after proper VCAA notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The Board notes that information pertaining to the assignment of disability evaluations and effective dates was provided to the veteran in the December 2004 statement of the case. Although this information was received subsequent to the initial rating action, it is relevant for claims for service connection, and it is not required to be provided for the claim currently on appeal. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board further finds that the duty to assist the veteran has been met. There is no indication that there is any outstanding evidence relevant to the claim on appeal. The information required to decide the appeal is contained in the claims folder. Therefore, the Board will proceed with a review of the veteran's claim. Helpless Child The veteran contends that his son is entitled to recognition as a permanently incapacitated helpless child and to the benefits from such recognition. The veteran notes that he served in Vietnam, where he was exposed to Agent Orange. He argues that his son's Non-Hodgkin's lymphoma is the result of this Agent Orange exposure, and that his son's illness leaves him permanently incapacitated. 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 (2007). 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 (2007). The 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 evidence includes a March 2003 letter from the son's doctor. This letter states that the son is being treated for Non-Hodgkin's lymphoma. He had first been seen on June 28, 1999 when he was seeking a second opinion for his newly diagnosed Non-Hodgkin's lymphoma. The son had undergone extensive treatments after the diagnosis was confirmed. A November 2003 Declaration of Status of Dependents submitted by the veteran states that his son was born on May [redacted], 1976. A March 2004 letter from the son's doctor again notes that that he has been diagnosed with Non-Hodgkin's lymphoma. The doctor states that he has treated the son since July 28, 1999. The overall prognosis was poor, and the son was unable to work and 100 percent disabled due to the active disease and treatment. In April 2006, the veteran submitted medical copies of bills reflecting treatment received between 1990 and 1995. One bill shows treatment for patellar subluxation of the left knee in August 1990. The name of the patient was not indicated, although the veteran states that it was his son. An April 1995 bill shows treatment for an upper respiratory infection for the veteran's son. The Board is unable to find that the veteran's son meets the criteria for recognition as a helpless child. There is no evidence to show that he was permanently incapable of self- support at the time he turned 18. The evidence shows that the son's sole current disability is Non-Hodgkin's lymphoma. There is no medical evidence of any other chronic disability, and the son's doctor did not refer to any other disability that contributes to his incapacity. The evidence also shows that the veteran's son was born on May [redacted], 1976. It follows that he became 18 on May [redacted], 1994. The letters from the son's doctor state that he was first found to have Non-Hodgkin's lymphoma in or around June 1999. The son was 23 years old at that time. Therefore, as the disability that has led to the son's incapacitation did not manifest until five years after his eighteenth birthday, the requirements for recognition as a helpless child have not been met. The Board has considered the information pertaining to treatment of the son for a knee injury and respiratory infection, but there is no evidence that these resulted in a chronic disability or in any manner contribute to his incapacity. While there is no evidence as to whether or not the son was enrolled in an educational institution when he became incapacitated, the Board further notes that the initial manifestation of the Non-Hodgkin's lymphoma after the 23rd birthday precludes further consideration of this exception. The Board must find that the veteran's son does not meet the criteria for recognition as a helpless child. 38 C.F.R. §§ 3.57(a)(1). The veteran's contentions regarding the possible relationship of his son's Non-Hodgkin's lymphoma to his own exposure to Agent Orange during service was not addressed above, as it is not relevant to the issue on appeal. There is no evidence to show that the veteran's son was permanently incapacitated prior to his 18th birthday regardless of the origin of his illness, and that alone is enough to cause the veteran's claim to fail. The relevant laws and regulations do state that veteran's exposed to Agent Orange and who subsequently develop Non-Hodgkin's lymphoma may receive compensation. See 38 C.F.R. § 3.309(e) (2007). However, the Board notes that under the law, the only monetary benefits payable for a child of a male veteran exposed to Agent Orange during service is for children born with spina bifida. See 38 C.F.R. § 3.814 (2007). Unless and until there is scientific evidence of a relationship between a veteran's Agent Orange exposure and the development of Non-Hodgkin's lymphoma in a child, and new laws and regulations recognizing this relationship are created, the Board is bound by the current law. Therefore, benefits for Non-Hodgkin's lymphoma in the child of an Agent Orange exposed veteran may not be paid. (CONTINUED ON NEXT PAGE) ORDER Entitlement to helpless child benefits on the basis of permanent incapacity for self-support before attaining the age of 18 is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs