Citation Nr: 1315914 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 09-21 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES Entitlement to Department of Veterans Affairs (VA) improved death pension benefits, to include the issue of whether the appellant 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. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The appellant is the Veteran's son. The Veteran had active service from July 1957 to July 1977. He died in April 2001. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the St. Paul, Minnesota, Regional Office which, in pertinent part, denied entitlement to payment of VA improved death pension benefits. In April 2009, the Seattle, Washington, Regional Office (RO) determined that the appellant was not permanently incapable of self-support prior to attaining the age of 18. The Board has reviewed both the physical claims file and the "Virtual VA" file so as to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran died in April 2001. 2. The appellant is the Veteran's son. 3. The appellant was born in December 1959. 3. The appellant was not permanently incapable of self-support prior to the age of 18. 4. The appellant is not a child of the Veteran for VA purposes. CONCLUSIONS OF LAW 1. The appellant is not a helpless child of the Veteran. 38 U.S.C.A. § 101(4)(A)(ii), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.57, §§ 3.102, 3.326(a), 3.356 (2012). 2. The appellant does not meet the basic eligibility requirements for VA improved death pension benefits. 38 U.S.C.A. § 1542 (West 2002 & Supp. 2012); 38 C.F.R. § 3.24 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, VA has issued an August 2008 VCAA notice to the appellant which informed him of the evidence generally needed to establish status as a helpless child of a veteran. The August 2008 VCAA notice was issued to the appellant prior to the April 2009 rating decision from which the instant appeal principally arises. The appellant's claim was readjudicated in the April 2009 and August 2009 statements of the case issued to him; therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In May 2009 and September 2009, the appellant requested a Board hearing before a Veterans Law Judge. In February 2013, the appellant was scheduled for a March 2013 Board hearing before a Veterans Law Judge. The appellant failed to appear for the scheduled hearing. A review of the record does not reflect that the appellant sought to reschedule the hearing. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no issue as to the substantial completeness of the claim. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. Status as the Veteran's Child for VA Purposes The appellant asserts that he is the helpless child of the Veteran and is, therefore, entitled to VA improved death pension benefits. Generally, an individual is a child of a veteran if he is the biological or adopted child or stepchild of the veteran, and is an unmarried person who either: is (1) under the age of 18; (2) "shown to [have been] permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years;" or (3) after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years), is 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, 3.356; Dobson v. Brown, 4 Vet. App. 443, 445 (1993). The issue is one of fact premised on competent evidence in the individual case. Bledsoe v. Derwinski, 1 Vet. App. 32, 33(1990). In his February 2007 Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable) (VA Form 21-534), the appellant reported that he was born in December 1959; therefore, he is over 53 years of age. Given his age, the appellant may be considered as the child of the Veteran for VA purposes only if he is "shown to [have been] permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years." Helpless Child The term "helpless child" has evolved in the development of veterans law. See Cumby v. West, 12 Vet.App. 363 (1999); Golliday v. Brown, 7 Vet.App. 249, 251 (1994). Hanlin v. Nicholson, 19 Vet. App. 350, 353 (2005). The provisions of 38 C.F.R. § 3.356 address factors to be considered in rendering a determination of permanent incapacity for self-support. The regulation directs that: (a) Basic determinations. A child must be shown to be permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. (b) Rating criteria. Rating determinations 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. 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. The appellant advances no specific argument or evidence as to having been permanently incapable of self-support prior to the age of 18. In his November 2007 notice of disagreement, the appellant asserted that "I feel that I am entitled to benefits because of my father's years of service" and "I am also disabled." In an August 2008 written statement, the appellant reported that he had been employed by the Konoike Pacific, Inc., from June 1988 to December 1997 at $13.80 an hour; by the Puyallup Fair from 1998 to 2000 at $8.00 an hour; and at a Wonder Bread bakery from May 2000 to March 2003 at $17.06 an hour. He clarified that he had been disabled and on public assistance since December 2003. In an August 2008 written statement, the appellant wrote that he believed that he qualified for VA benefits because he was disabled and the Veteran had served for 22 years. In his May 2009 Appeal to the Board (VA Form 9), the appellant clarified that he was "handicapped and need assistance." In his September 2009 Appeal to the Board (VA Form 9), the appellant stated that he was "disabled and need benefits so I have a place to live." In his May 2013 Appellant's Brief, the accredited representative contends that the appellant believed that he "is a helpless child who is therefore eligible for death pension" benefits. The appellant does not advance that he was permanently incapable of self-support by reason of mental or physical defect prior to the age of 18; instead, and weighing against a finding of permanent incapacity for self support prior to age 18, the appellant has provided specific and detailed evidence that he was gainfully employed between June 1988 and December 2003, when he became disabled at the age of 44. Such employment negates a finding of permanent incapacity for self-support and also evidences an absence of mental or physical defect prior to the reported age of 44. In the absence of any favorable evidence of permanent incapacity for self-support prior to the age of 18, the Board finds the appellant is not the helpless child of the Veteran. Eligibility for VA Improved Death Pension Benefits A child of a deceased wartime veteran may receive pension benefits. 38 U.S.C.A. § 1542; 38 C.F.R. § 3.24. As discussed above, the appellant is not the child of the Veteran for VA purposes including entitlement to improved death pension benefits; therefore, he does not meet the eligibility requirements for such benefits. ORDER As the appellant is not a child of the Veteran for VA purposes, the benefits sought on appeal are denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs