Citation Nr: 1125738 Decision Date: 07/08/11 Archive Date: 07/15/11 DOCKET NO. 09-30 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether the Veteran's son is entitled to recognition as a "helpless child" on the basis of permanent incapacity for self-support prior to attaining the age of eighteen years. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD David Gratz, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1944 to November 1945. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge on April 19, 2011. A transcript of the hearing has been associated with claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's son was born on July [redacted], 1956, and he attained the age of 18 in July 1974. 2. The evidence of record establishes that the Veteran's son was permanently incapable of self-support by reason of physical or mental defects at the time he attained the age of 18. CONCLUSION OF LAW The criteria for entitlement to helpless child benefits on behalf of the Veteran's son on the basis of permanent incapacity for self-support before he reached the age of 18 have been met. 38 U.S.C.A. §§ 101(4), 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.57, 3.102, 3.159, 3.356 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Analysis: Whether the Veteran's Son is Entitled to Recognition as a "Helpless Child" on the Basis of Permanent Incapacity for Self-Support Prior to Attaining the Age of Eighteen Years The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his son, the dependent, is a helpless child who is permanently incapable of self-support due to mental and physical incapacity, including an inability to hear. The dependent was born in July 1956 and turned 18 years of age in July 1974. The Veteran has credibly testified that his son was a helpless child at the time he turned 18 as a result of mental and physical incapacity. In order to establish entitlement to recognition as the helpless child of the Veteran, it must be shown that the child was permanently incapable of self support by reason of mental or physical defect as of his or her eighteenth birthday. 38 C.F.R. § 3.356(a). Rating determinations regarding helpless child status are made solely on the basis of whether the child is permanently incapable of self-support through his own efforts by reason of physical or mental defects. Rating criteria applicable to disabled veterans are not controlling. The question of permanent incapacity for self-support is one of fact for determination by the rating agency on competent evidence of record in the individual case. Id. A "child" for VA benefits purposes 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); 38 C.F.R. §§ 3.57(a)(1), 3.356. Factors for consideration under 38 C.F.R. § 3.356 are: (1) The fact that the "child" 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. The Court has held that the "focus of analysis must be on the claimant's condition at the time of [his] 18th birthday." Dobson v. Brown, 4 Vet. App. 443, 445 (1993). For purposes of establishing helpless child status, if the child is shown to be capable of self-support at eighteen, VA is required to proceed no further. Id. However, if a finding is made that the child was permanently incapable of self-support as of his eighteenth birthday, then, regardless of that finding, evidence of the child's continued incapacity is needed. Id. As an initial matter, the Board notes that the Veteran's son is unmarried. The Veteran has submitted his son's records from the Iowa School for the Deaf. In September 1973, at age 17 1/2, the school provided the Veteran's son with a Psychological Report concurrent with his receipt of a vocational diploma. The clinician found that, based on the Wechsler Scale, the son had "major deficiencies relat[ing] to word meanings, rote memory, social judgments, learned facts, and the reproduction of symbols." Although the Veteran's son was of the age of a 12th grade student, the clinician found that his performance on the Stanford Achievement Test was equivalent to a student in grade 4.5. The clinician concluded that the son "is still not quite matured enough for proper placement. [It w]ould be wise for him to spend perhaps a year with [his] parents before seeking a program....Results of the test data suggest lower than normal mental development and functioning within the seven year range. By these findings slower than usual growth could be anticipated." A separate school record, dated May 1974, includes a finding that the Veteran's son is "Severely Handicapped." In March 2007, the Veteran's son's treating physician, C.B. Zimmerman IV, M.D., noted that he had known the son for 14 years-since 1993, when the son was 37. Dr. Zimmerman opined that the son "suffers from many physical and mental disabilities. Currently he lives on his own, but is financially supported by his parents. He is able to prepare meals and hygiene adequately. However, he is unable to manage his own finances. While employed in the past, he is unable to maintain a job due to poor attendance and inability to perform the work....For all intents and purposes [the Veteran's son] is totally dependent on his parents." The Board finds that the Veteran's son is not currently earning his own support. In a November 2007 letter, the Veteran wrote that his son "is not responsible enough to pay his bills. He cannot handle money. My name is on his checking account because I have to take care of it. I pay his bills and give him so much money. He is not responsible enough to hold a job." The Veteran similarly testified at his April 2011 hearing that his son is unable to work or manage his money. Id. at p. 10. Additionally, the Veteran reported that when he and his wife tried putting their son up in his own apartment in their state, Colorado, "a couple of young ladies moved [into the building, and]....later we got a phone call that they had hawked everything that they could hawk in his apartment and he went [from his apartment] to New York with them....[A]bout three months went by and we got a phone call....[T]he girls [had] kicked him out [and] finally [he] went to a social worker there and she called us...and of course he wanted to come home. So we sent the money to him for the plane ticket to come home. Well we didn't hear anything for a week or 10 days and pretty soon we got another phone call from a social worker [telling us that] when he got that money...he went back with the girls and they took the money away from him....[The social worker] said can you just send me his [plane] ticket and I'll see that he gets on the plane. And that's what happened." Id. at pp. 11-12. The Board further finds that the Veteran's son's past employment is best characterized as casual, intermittent, tryout, unsuccessful, and terminated after a short period of time by reason of disability. The Veteran testified that his son attempted to work as a machinist after high school, but "it didn't work." Id. at p. 8. The Veteran also testified that his son worked for him for about three years in the 1980's, sweeping floors and running a riding lawnmower. Id. at p. 3. The Veteran explained that he and his spouse "owned an implement business on a farm...and...I could keep him busy around doing what he could do...but...he needed constant look[ing] after....[H]e worked for a horse farm for a little bit, [but] that didn't work either because he...couldn't understand [or] get in his head which horse got which feed." Id. at p. 10. Based on this report, the Board finds that the son's employment by his parents is best considered as afforded solely upon sympathetic or charitable considerations, and involved no substantial rendition of services. Furthermore, the Board finds that these circumstances, including sweeping floors and riding a lawnmower while being constantly looked after by his parents, are not equivalent to the activities of employment of any nature which would provide sufficient income for reasonable support. It is not reasonable to expect that someone could earn sufficient income for reasonable support by sweeping floors and riding a lawnmower if the employer had to hire a second employee to constantly look after him while he engaged in those tasks. The Veteran and his daughter also testified that the son worked for the City of Aurora tending flowers under a program designed for "hir[ing] the handicap[ped]," but the son was only able to maintain that employment for six months before being relieved of his job because he could not handle it mentally or physically. Id. at pp. 4-5. Based on a review of the foregoing, and attributing the benefit of the doubt to the Veteran, the Board finds that the Veteran's son was disabled at the time of his 18th birthday, and met the criteria of a helpless child prior to turning 18 years old. A Psychological Report from the Iowa School for the Deaf, drafted when the son was 17 1/2 years old, included a clinician's findings that his performance was equivalent to a student in grade 4.5, and that he was not ready for a job placement program. A separate school record, dated May 1974, includes a finding that the Veteran's son was "Severely Handicapped." Additionally, the Veteran has stated that his son is not currently earning his own income, and he has provided competent medical evidence that his son remains unable to work or manage his finances due to his many physical and mental disabilities. Furthermore, the short, unsuccessful, and charitable employment by the Veteran's son described above does not rebut his otherwise-established permanent incapability of self-support. Therefore, the Veteran's claim is granted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER VA benefits on the basis of permanent incapacity for self-support of the Veteran's son prior to attaining the age of 18 are granted. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs