Citation Nr: 1110653 Decision Date: 03/17/11 Archive Date: 03/30/11 DOCKET NO. 09-21 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether the Veteran's son may be recognized as a 'helpless child' on the basis of permanent incapacity for self-support prior to attaining the age of 18 for the purpose of entitlement to VA benefits. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of the Buffalo, New York Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's claim for benefits based upon permanent incapacity for self-support for his son, P.S. FINDINGS OF FACT 1. The Veteran's son was born in June 1979 and turned 18 years of age in June 1997. 2. The Veteran's son was permanently incapable of self-support by reason of a mental or physical condition prior to attaining the age of 18. CONCLUSION OF LAW The criteria for entitlement to VA benefits on the basis of permanent incapacity for self-support of the Veteran's son prior to attaining the age of 18 have been met. 38 U.S.C.A. § 101(4)(A) (West 2002); 38 C.F.R. §§ 3.57, 3.356 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. Legal Criteria 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 (2010). The Veteran contends that his son, P.S. became permanently incapable of self- support as a result of significant cognitive dysfunction and psychiatric issues before the age of 18, which, if supported by the evidence, would render him a child of the Veteran, regardless of his age, 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 (2010). 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 18th 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 18th birthday, then evidence of the claimant's subsequent condition becomes relevant for the second step of the analysis, that is, whether there has been improvement sufficient to render the claimant capable of self-support. Id. If the claimant is shown to be capable of self-support at 18, VA is required to proceed no further. Id. Analysis In this case, there is no question that the Veteran's son, PW, is now incapable of self-support. The issue is, however, whether he was permanently incapable of self support at age 18, specifically as of his birthday in June 1997. Although there is no doubt that P.S. is the Veteran's son and that he is not married; the record does not support a finding that he became permanently incapable of self support prior to reaching the age of 18. A March 1986 psychological report from GE, P.S.'s school psychologist, conducted when P.S. was six years old shows that he had high average to above average intelligence, but due to a high degree of impairment in his ability to concentrate and attend to stimuli, he was completely unable to exercise his high degree of ability and was completely incapable of the usual types of learning. He also noted that P.S. had a significant speech impairment and it was difficult to understand what he was saying. The psychologist concluded that test results showed that P.S. had a serious deficit in the area of concentration and attention span, suggestive of attention deficit disorder. He suggested that he be prescribed Ritalin and placed in a learning disabled (LD) setting where specific techniques could be used to work on his deficit. He also noted that if P.S. did not show drastic improvement in the future, specialized programming would be needed for him since he would only benefit from one-to-one or small group instruction. However, despite his learning deficiencies, the examiner noted that test results showed that P.S. had normal developmental maturity with approximately age equivalent development of six and a half years. Records from the Primary Care Clinic dated from December 1987 to August 1989, when P.S. was between 8 and 10 years old show that he was noted to have a history of attention deficit disorder and that he was taking Ritalin. They also show that he had behavior and learning problems. In December 1991, when he was twelve years old, P.S. was evaluated again by GE. The report of evaluation shows that emotionally and intellectually, P.S. had not developed in an appropriate fashion, and was childish and immature. It also showed that P.S. had a serious speech defect and problems with reading and mathematics. The examiner noted that test scores showed that P.S. was functioning at the average range of intelligence, and in fact, had the potential to be in the high average range. He; however, had what appeared to be a serious deficit in both auditory and visual memory was having a detrimental effect on his ability to read, spell and remember math facts, and test scores showed that in mathematics, reading and spelling, he was functioning at the lower extreme, which indicated a near retarded level of performance. He also continued to have problems with his ability to concentrate and attend to stimuli. Testing showed that his reading and spelling skills were at between a first and second grade level and that his math skills were at a fourth grade level. It was evidence, according to the school psychologist, that the Veteran needed intensive remedial instruction in all areas measured, and also required intensive help in areas involving memory. GE concluded that P.S. was an extremely immature, childish boy who was in need of a change in some forms of his environmental activities so that he would be able to grow and mature emotionally and be able to react on the same level as his peers. He also noted that P.S. had at least average intellectual potential, but because of what appeared to be a serious deficit in his ability to remember verbal and visual materials, he was completely unable to learn at a normal rate, and those deficits were affecting his ability to read, spell and do mathematics. He also noted that P.S. had a speech defect and suggested that he receive treatment from a speech pathologist. He recommended that P.S. continue in the type of learning environment he was in, as long as he was able to receive intensive remedial help in reading and mathematics, and afforded specific activities that would help him develop his memory channels. In an October 2008 statement, MS, MD indicated that P.S. was under his care for a seizure condition, and that he had significant cognitive dysfunction and psychiatric issues. He also noted that P.S. was on seizure medications and maintenance psychotropic medication. MS also noted that P.S.'s condition had abruptly declined and that he had permanent sequelae, as a result of neurosurgical interventions undertaken to treat his seizure disorder in July 2006, at which time he sustained a stroke from which he had not completely recovered. He indicated that no significant improvement in his condition was expected, and he would require a lifetime of medical supervision and care. He also noted that P.S. would not be able to maintain an independent household or become gainfully employed, and that he was living in a shared residence with his father, which appeared to be necessary for his safe day to day function. In a May 2009 statement, MC, P.S.'s former teacher, indicated that P.S. was classified as learning disabled in 1986, and that it was determined later that his disability was more profound and he was placed into a Special Education class, where he remained throughout the remainder of his academic career. She also indicated that P.S. attended her special needs class as a sixth, seventh and eighth grader, and that after keeping in touch with him throughout the years, she can attest to the fact that he still requires assistance to function independently. In another statement dated in May 2009, LL, a personal acquaintance of P.S. from Boy Scouts, school and their neighborhood, indicated that P.S. had some special needs and that he would always require some assistance. Specifically, he noted that P.S. had difficulty organizing his activities, was easily frustrated, and needed help planning and following through on goals. However, he also noted that with help from his community of adults, P.S. was able to make Eagle Scout, "an honor achieved by less than 2 percent of the young men involved in scouting." He concluded that P.S. could accomplish many things in life, but he would always need some support services. At a VA examination in October 2009, to evaluate the Veteran's disabilities, in it was reported that his son lived with him and was in receipt of Social Security Administration disability benefits. The claims folder does not show that the Social Security records were requested. Although the evidence demonstrates that P.S. has been incapable of supporting himself since 2006, when he was approximately 29 years old, it does not establish that he was permanently incapable of self-support at the time of his eighteenth birthday. The evidence of record shows that at the age of six, P.S. was determined to have serious learning disabilities, namely attention deficit disorder, and as a result, was prescribed Ritalin and placed in special needs or special education classrooms until at least the eighth grade, and possibly for the remainder of his school-age years. Prior to reaching the age of 18, he was found to be incapable of learning, to have a significant speech impediment, and to be far below grade level in math, reading and spelling. He had significant impairments in memory and required assistance to function independently. There is evidence against the claim, in the form of the report that he was able to become an Eagle Scout, and is able to achieve some goals. There is; however, no opinion that the Veteran would have been capable of self support prior to reaching the age of 18. His limited accomplishments were apparently achieved only with intensive adult support and his teacher, friend and school psychologist have all essentially concluded that he would not have been able to progress without such intense involvement. The need for such intense help suggests that the Veteran would not have been able to support himself. His learning disabilities appear to have been lifelong, and hence permanent. Resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran was permanently incapable of self support prior to reaching the age of 18, even before the worsening of his disability following a stroke in 2006. Accordingly, the claim is granted. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to recognition of P.S. as a helpless child of the Veteran for purposes of receiving VA benefits is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs