Citation Nr: 1314066 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 10-13 764A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to recognition of the Veteran's stepchild, C.B., as a "helpless child" on the basis of permanent incapacity for self-support prior to attaining age 18. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and R.O. ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active service from May 1980 to April 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. By way of procedural history, the RO denied the Veteran's claim in a March 2008 rating decision. In December 2008, Dr. Gallien submitted a medical statement on behalf of the Veteran's claim, which indicated that the Veteran's stepchild, C.B., was permanently incapacitated for self-support and disabled as of September 1, 1995. The RO then issued a rating decision in March 2009 continuing the previous denial. Although the December 2008 submission was not specifically a notice of disagreement with the March 2008 rating action, the submission was received prior to the expiration of the appellate period for the March 2008 RO determination and contained new and material evidence pertaining to the claim. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the March 2008 rating action is the proper rating action on appeal, with respect to the permanent incapacity claim as captioned above. The Veteran and his wife, R.O., appeared and testified at a hearing held at the RO before the undersigned in July 2012. A copy of the transcript of this hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran's son, C. B., was born in November 1977 and attained the age of 18 in November 1995. 2. At the time of his 18th birthday, C.B. had mental defects, namely, severe schizophrenia, rendering him permanently incapable of self-support. CONCLUSION OF LAW The criteria for recognition of the Veteran's stepchild as a "helpless child" on the basis of permanent incapacity for self-support prior to attaining age 18 have been met. 38 U.S.C.A. § 101(4) (West 2002); 38 C.F.R. §§ 3.57, 3.102, 3.315, 3.356 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. With regard to the Veteran's claim for recognition of his stepchild as a "helpless child," the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Helpless Child Benefits - Factual Background and Analysis The Veteran is seeking compensation for the care of his stepchild on the basis that his psychiatric disorder, diagnosed as schizophrenia, rendered him permanently incapable of self-support prior to reaching the age of 18 years. VA provides certain benefits for a child of a veteran who is shown to be permanently incapable of self-support by reason of mental or physical defect by or before his or her 18th birthday. 38 U.S.C.A. § 101(4)(A)(ii) ; 38 C.F.R. §§ 3.57(a)(1)(ii), 3.356. The definition of the term "child," as defined for the purposes of establishing dependency status, 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 and who is a member of the Veteran's household at the time of the Veteran's death; or an illegitimate child. In addition, the child must be someone who: (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4); 38 C.F.R. § 3.57(a). 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). Rating determinations regarding incapacity for self-support will be 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. 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. Rating criteria applicable to disabled veterans are not controlling. 38 C.F.R. § 3.356(2). Principal factors for consideration are: 1) that a claimant is earning his/her own support is prima facie evidence that he/she is not incapable of self-support. Incapacity for self-support will not be considered to exist when the child by his/her own efforts is provided with sufficient income for his/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/her condition was such that he/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 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) 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 doubt as to whether they would render the average person incapable of self-support, factors other than employment are for consideration. In such cases it 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; and 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(b) . 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran's stepson, C.B., was born in November 1977 and reached 18 years of age in November 1995. Thus, evidence discussing his condition at that time is paramount to the claim. The current medical evidence demonstrates that C.B. is diagnosed with severe schizophrenia. The Veteran contends that C.B.'s schizophrenia condition was sufficiently severe prior to his 18th birthday that self-support was not possible. In support of this claim, the record contains the following: (1) numerous lay statements from the Veteran, the Veteran's wife, various other family members, and a clergy/church member, indicating that C.B. displayed psychological symptoms and behavioral problems (e.g., isolation, self-mutilation, setting fires, hallucinations, delusions, etc.,) as early as age 9, which escalated into more severe and frequent psychological symptoms by the age of 18; (2) private medical statements from psychiatrists and licensed counselors reflecting that, due to his schizophrenia, C.B. is disabled and completely dependent on his parents for financial support, and has been since approximately 1995 (see, e.g., Dr. Brophy's May 2001 Statement; Dr. Gallien's December 2008 Statement; and Dr. Benhalim's September 2012 Statement); (3) an August 1998 decision from the Social Security Administration (SSA) rendering C.B. disabled due to severe schizophrenia as of September 1, 1995; (4) school records and class reports, dated from 1992 to 1994, reflecting C.B.'s failure to complete assignments, poor performance on tests, and excessive absences; (5) W-2 Wage and Tax Statements reflecting his various attempts at part-time employment, from 1993 to 1997, and most recently in 2005. Of particular note from the above evidence is a May 2001 letter in which Dr. Brophy, a private psychiatrist, stated that he had been treating C.B. for schizophrenia since 1998 (at which time he was approved for SSA benefits), and that C.B. was "disabled" from such condition since 1995. No definite date of recovery could be provided by Dr. Brophy. In addition to Dr. Brophy's statement, the record contains a December 2008 letter in which Dr. Gallien stated that C.B. was unable to support himself secondary to schizophrenia, and that he had been "disabled" since September 1995 (i.e., since the age of 17). Lastly, in September 2012, Dr. Benhalim, a psychiatrist, submitted a letter on behalf of the Veteran indicating that C.B.'s schizophrenia condition required constant assistance with all activities and daily living; that his parents had to supplement his income to ensure all of his basic needs were met; that he began having behavioral problems at the age of 9 years old, at which time he was involved in a house fire and he suffered the loss of his father; and that he was formally diagnosed with schizophrenia "around the age of 18." (Emphasis added). Dr. Benhalim further noted that C.B. "has never been able to maintain stable employment, as stress appears to exacerbate his condition, making it difficult to work." Again, the record also contains an August 1998 SSA decision which essentially determined that C.B.'s ("severe") schizophrenia had been present since September 1, 1995 (date of onset), and that he had not been engaged in substantial gainful activity since that date. Moreover, this finding was based upon medical evidence showing that C.B. experienced ongoing delusions, a "more than moderate" limitation in daily activities, poor memory, confusion, aggressive behavior, markedly impaired social functioning, and deficiencies in concentration. See SSA Determination, p.2. When viewed comprehensively, the evidence outlined above, to include lay statements, the SSA determination/decision, school records, and in particular, the medical statements from Drs. Brophy, Gallien, and Benhalim, all tend to support the conclusion that C.B.'s schizophrenia rendered him permanently incapable of self-support prior to reaching the age of 18. Indeed, this evidence reflects that C.B. displayed persistent psychological/behavioral symptomatology, such as poor memory and concentration, isolation, self-mutilation, setting fires, and delusions, prior to reaching the age of 18, and beginning as early as age 9. While Dr. Benhalim's psychological evaluation was not conducted contemporaneously with C.B.'s 18th birthday, he nevertheless affirmatively stated that C.B. had experienced these problems since at least the age of 9. The Board finds his statement to be highly probative especially insofar as it documents ongoing symptomatology. Ongoing symptomatology is also reflected by the disability finding by SSA in August 1998. The SSA determination indicated that C.B.'s inability to engage in any substantial work was due to mental disability that had been ongoing since September 1995, prior to his 18th birthday. In addition to the SSA determination, school records dated from 1992 to 1994 (C.B. turned 18 in 1995), reflect mental and behavioral problems. Again, this evidence tends to support a pattern of ongoing and worsening psychological symptomatology prior to C.B. attaining the age of 18. Moreover, while the record contains W-2 s Tax Statements from C.B.'s various attempts at employment prior to the age of 18, these records clearly show that any such employment was no more than intermittent and casual, at best. As such, this evidence should not be considered as rebutting permanent incapability of self- support otherwise established here. In light of the foregoing, the Board finds that the most persuasive and probative evidence of record shows C. B. to have become permanently incapable of self-support before the age of 18. 38 U.S.C.A. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.356. ORDER Recognition of the Veteran's stepchild as a helpless child, on the basis of permanent incapacity for self-support prior to attaining the age of 18, is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs