Citation Nr: 1322203	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  12-34 305	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to Dependency and Indemnity Compensation (DIC) benefits as an adult helpless child on the basis of permanent incapacity for self-support prior to reaching the age of 18 years.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and his mother (Veteran's widow)


ATTORNEY FOR THE BOARD

M. H. Stubbs, Counsel


INTRODUCTION

The Veteran served on active duty from August 1942 to December 1945.  He died in March 1983.  The Veteran's widow (widow) is in receipt of DIC benefits under 38 U.S.C.A. § 1151.  The appellant is the surviving adult child of the Veteran and his widow.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  The March 20, 2012 rating decision addressed the claim on appeal as a claim to reopen a claim of entitlement to DIC benefits as an adult helpless child on the basis of permanent incapacity for self-support prior to reaching the age of 18 years.  The RO found in the March 2012 rating decision that the new evidence that was submitted was not material, and thus the claim could not be reopened.

The RO addressed the current claim as a claim to reopen due to an unusual procedural history.  In March 2002, the widow applied for additional DIC benefits on behalf of the appellant due to his permanent incapacity for self-support prior to age 18.  Her claim on behalf of the appellant was denied in a June 2002 rating decision by the RO in Roanoke, Virginia.  She appealed her claim to the Board, and it denied entitlement in an August 2005 decision.  She then appealed her claim to the U.S. Court of Appeals for Veterans Claims (Court).  In an April 2007 decision the Court affirmed the Board's denial of benefits.  As the widow's claim was for the same benefits that are now being sought by the appellant (DIC "helpless child" benefits for the appellant), the RO addressed the appellant's claim as a claim to reopen.  The Board finds, however, that because the current claim and the previously denied "helpless child" claim have been requested by different claimants, the issue must be addressed on the merits and not as a claim to reopen.  Additionally, while the Court affirmed the Board's prior denial of "helpless child" benefits, additional evidence that was not before the Court has been added to the claims file, and thus the facts of the case are different from that previously addressed by the Court.

During the widow's appeal of her claim, a Board hearing was held.  A transcript of that hearing is of record.  The Board member who heard the case is no longer with the Board.  The appellant requested a Board hearing on his substantive appeal VA Form 9, and was scheduled for a hearing in June 2013.  He did not report for the hearing and did not request that it be rescheduled.  His hearing request will therefore be considered withdrawn.  38 C.F.R. § 20.704(d)(2012).  As the widow's claim has been determined to be separate from the appellant's claim, the fact that the Board member before whom she (and the appellant) presented testimony is no longer before the Board does not entitle the appellant to an additional hearing, particularly in light of his failure to report to a subsequently requested hearing.

Given that the RO addressed the claim on the merits in September 2012 and February 2013 supplemental statements of the case (SSOC) the appellant is not prejudiced by the Board's consideration of this claim on the merits.  Bernard v. Brown, 4 Vet. App. 384 (1993).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The appellant was born in August 1956 and attained the age of 18 years in August 1974.

2.  The appellant 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 18.


CONCLUSION OF LAW

The criteria for entitlement to DIC benefits based on helpless child status have not been met.  38 U.S.C.A. § 101(4) (A) (West 2002 & Supp. 2012); 38 C.F.R. § 3.356 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants.  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA 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; and (3) that the claimant is expected to provide.

In the instant case, the Board finds that VA fulfilled its duties to the appellant under the VCAA.  The Board concludes that the October and November 2011 letters sent to the appellant by the RO adequately apprised him of the information and evidence needed to substantiate the claim, including a list of information which can help the VA determine if the appellant was "helpless for VA purposes."  

The appellant has been provided the opportunity to submit evidence and argument in support of his claim and to respond to VA notices.  The appellant's Social Security Administration (SSA) disability determination and accompanying medical records are contained in the claims file, as are separately provided private treatment records.  During the December 2012 RO hearing the widow stated that the appellant was treated at DePaul hospital.  It is unclear if she was indicating that he was treated at the DePaul hospital immediately after being involved in a motor vehicle accident as a baby or another time.  The widow indicated that records from DePaul were already located in the claims file, but that they were handwritten and difficult to read.  The widow and the appellant have not provided the VA with consent to release medical information forms for a DePaul hospital, or any other identifying information about the treatment, including a timeframe.  The widow has vaguely indicated that attorneys were involved following the motor vehicle accident in which the appellant was injured, but she believed the attorneys were now long dead.  She also reported that a court in VA may have records on the accident, but did not provide sufficient detail in order for the VA to assist in a search.  The RO hearing officer suggested that the appellant and widow attempt to obtain any outstanding evidence they wanted to submit or to provide sufficient evidence (dates, locations, names, and release forms) so that the VA could assist.  This information was also included in the February 2013 supplemental statement of the case.  No release forms or additional information was provided after the December 2012 hearing.

Because the appellant was over 18 years of age at the time of the claim for helpless child benefits, no VA examination is required to determine his eligibility, as his capacity for self-support prior to age 18 is the focus of the claim.  The Board finds that there is sufficient evidence to make a determination in this case, and the appellant is not prejudiced by a decision at this time.  

The Board also notes that as will be explained below, there is no legal basis upon which the benefits may be awarded and the appellant's claim must, regrettably, be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  The provisions of VCAA have no effect on an appeal where the law and not the underlying facts or development of the facts are dispositive in a matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).

Laws and Regulations

In this case, the appellant maintains that he is a "helpless child" of the Veteran and, as such, he is entitled to DIC benefits.  He reports that he is unemployed as a result of disability and that he is permanently incapable of self-support. In regard to his disability, he has indicated he is mentally "slow" and that he suffers from several physical "conditions" (including the implantation of a defibrillator, circulatory problems, hypertension, gastrointestinal problems, anemia, and heart disease).

The term "helpless child of a Veteran" is defined, in part, as a child who is 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.

Under 38 C.F.R. § 3.356(b), rating determinations will be made solely on the basis of whether the child is permanently incapable of self-support through his or her own efforts by reason of physical or mental defects.  The question of permanent incapacity for self-support is one of fact for the rating agency to determine based on competent evidence of record in each individual case.  Rating criteria applicable to disabled Veterans are not considered controlling.  Rather, the following factors are for consideration.

(1) Evidence 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.

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.   

Factual Background and Analysis

The appellant and his mother (widow) have maintained that the appellant was involved in an automobile accident when he was a baby, and that this accident, and an assault as a teenager, caused him to be incapable of self-support prior to his 18th birthday.

The claims file does not contain any treatment records from prior to the appellant's 18th birthday.  In fact, the earliest records for the appellant are from 1993, almost 20 years after his 18th birthday.

The January 1993 private CT scan of the appellant's head noted the ventricles and cortical sulci of the brain were normal.  There was no evidence of midline shift, mass effect or acute hemorrhage.  Images in the posterior fossa were normal.  

In April 2000, the appellant sought emergency treatment for chest pain and was found to have an anterolateral myocardial infarction approximately a week prior to his presentation for treatment.   On April 21, 2000 a cardiac consultant noted the Veteran had an "extremely strange affect and seems either schizoaffective or possibly mentally retarded, though his mother claims that he finished his senior year in high school."  He was noted to have been unemployed for many years other than his work as a "car detailer."  He underwent quadruple coronary artery bypass surgery.  At the time of his surgery he reported he worked "driving cars."  

Subsequent to surgery he was noted to have some confusion and a CT scan of his head was performed on April 28, 2000.  He was noted to have "multiple foci of lacunar infarction, predominantly old.  In this distribution no evidence of ventricular enlargement, intracranial hemorrhage or masses were identified."  An MRI revealed ischemic changes.  Within a week he had "significant improvement from a neurological standpoint.  He was very appropriate and neurologically was intact."

A private treatment record from April 2003 noted a past medical history of "mild mental retardation."  An April 2003 letter from private physician R.A.H. noted the Veteran was listed as "unemployable/disabled as of April 19, 2000."

The claims file contains the appellant's SSA records.  The records include an August 2000 emergency medicine report from the VA Department of Rehabilitative Services.  The physician noted the appellant had difficulty describing what his medical condition was and how it impaired his function.  The widow indicated, "in a long rambling story," that the appellant was involved in a motor vehicle accident when he was six weeks old.  He was being held in the arms of a female passenger when their car was hit by another car travelling at 70 miles per hour.  The female passenger was described as being thrown from the vehicle with the appellant still in her arms.  The widow indicated that the appellant sustained internal injuries, and as a result he takes two hours to defecate and is very slow in his movements, and very slow when talking.  He was described as living off of peanut butter sandwiches for 40 years.  He was able to dress himself and he had a driver's license.  He did not finish high school due to being beaten up by for men who asked him for a quarter three months prior to graduation, and refusing to go back to school for fear of another assault.  He was noted to have "some type of psychomotor deficiency."  He was severely slow in movements and in answering questions; however, he did answer questions appropriately.  He was noted to have borderline thought and idea content, but he was on the "low normal" range.  He also had low normal memory and intelligence.  

In September 2000, the appellant underwent a mental status evaluation and intellectual assessment.  He was able to finish the eleventh grade of formal education.  He reported that the summer before his twelfth year he was attacked by three men who wanted to steal his bicycle.  He was not hospitalized and did not seek medical treatment, but he and his mother (widow) indicated he had significant bruises and abrasions around his head.  He also noted that a reason he did not complete high school was because his mother was single and raising six children and so they moved frequently.  He repeated the second grade, but he was involved in mainstream courses and did not take learning disability curriculum.  He worked in the kitchen of a nursing home for six years, and as a groundskeeper at a golf course for one year.  He also delivered newspapers and mowed lawns (age was not indicated).  At age 28, the appellant shared an apartment with his brother, sister, and two others while working as a groundskeeper at a golf course.  He indicated he last worked in 1985 as a groundskeeper, and has since held odd jobs such as mowing lawns.  His medical history was significant for cardiac disorders and surgery in April 2000.  Upon testing, he received a perfect 30/30 score on the Cognitive Capacity Screening Examination.  He had no difficulties with serial 7s calculations, and he had no difficulties with immediate memory tasks.  His intelligence was within the low-average range.  His memory and problem solving skills were intact.  His speech and social interactive style was characterized by a very slow tempo.  "He was slow to answer the interviewer's questions and noted that this has been his characteristic style throughout his life."  He was noted to overall have a low-average range of intellectual functioning after testing, with strengths of vocabulary, arithmetic and matrix reading among others.  His particular weaknesses were coding, picture arrangement, and similarities.  "Any difficulties that he may have appear to be more of a medical nature related to his quadruple bypass surgery;" he should be considered capable of making his own financial decisions.  

In July 2001, the appellant underwent an additional mental status and psychological assessment.  He was noted to have an unusual diet of eating eggs, bacon and pancakes two to three times per day.  He would not typically eat other types of food.  He reported sore hips and knees after walking one to two miles.  He reported no difficulties with his short or long-term memories.  He was provided an axis I diagnosis of adjustment disorder with mixed disturbance of emotions and conduct, and an axis II diagnosis of schizoid personality with avoidant and dependent traits.  Notably, the psychologist cautioned that the appellant's responses to the Personality Assessment Inventory were idiosyncratic, and the report should be "reviewed with caution" as the responses could affect the test results.

In January 2003, the appellant was provided an intellectual assessment.  He had an overall score of 87 on the Wechsler Adult Intelligence Scale, within the Low Average range.  The Low Average range encompasses scores of 80 to 89.  "No formal diagnoses are rendered at this time for this individual.  From an intellectual standpoint, there should be no difficulty with [the appellant] making financial decisions in his own best interest."

An April 2003 CT scan noted mild cerebral atrophy with small old lacunar infarcts.

The claims file contains some of the appellant's school transcripts.  He was enrolled in general education classes, such as psychology, typewriting, English, and federal government.  In 1969, he appears to have fulfilled the VA school standardized testing requirement.  In a December 1971 letter, the appellant was noted to have just enrolled in a new school, but he had As in reading and science, a B+ in spelling, and a D- in language.  From 1964 to 1969, it appears the appellant changed schools three times, and was absent numerous days.  An October 1973 letter from the guidance director of the appellant's high school revealed the appellant's Otis-Lennon DIQ test showed that he was in the 50th percentile by age.  He scored a grade equivalency of 12.0 on the "CTBS" and was in the 77th percentile rank.  His transcripts show he received mostly Cs, Ds, and Es during his high school performance these years (from grades 10 to 12).  From 1974 to 1975, in the 11th grade, he had his best grades, including two Bs in math and "stock market."  During his 12th year semester he was absent 81 days and had a 0.2 GPA and only completed 0.25 credits.  

As noted in the introduction, the appellant's mother (Veteran's widow) and the appellant testified at a Board hearing in April 2004 regarding her claim for DIC "helpless child" benefits on behalf of the appellant.  She argued that he was a "helpless child" prior to age 18 due to a motor vehicle accident in 1956.  She reported the Veteran was driving under the influence of alcohol and turned left in front of another car, which was travelling at a high rate of speed.  She reported that it took several police officers to pry her door open and that when she looked behind the car she saw that the female friend who was holding the appellant in her lap had been ejected from the car and was lying in the middle of the highway with the appellant still in her arms.  She then reported that it took 5 police officers to retrieve the six-week old appellant because of how tightly the woman was holding him.  The widow contends that as a result of this fierce grip on the baby's mid-section the appellant developed intestinal problems.  She stated that he was afraid of doctors and that is why she has no medical records from his childhood.  She stated that his physical activities decreased with time and were no longer possible due to his heart disease.  The appellant reported he had "fair" grades, and that he did not complete high school because he did not want to take a language class and he was told he had to complete a foreign language class to graduate.  He reported working as a groundskeeper for a golf course, a groundskeeper at a put-put golf place until the business closed down, for six years at a retirement community, and he worked at a "fishing place."  He stated he was always able to operate machinery, but that his physical disabilities have made it harder and harder for him to walk.  He indicated he never ate vegetables, meat or fruits and that he essentially lived on carbohydrates (bread, crackers, chips, pancakes, and peanut butter).  He stated that he lived on his own, with various friends, prior to 1985.  He also stated he obtained a driver's license at the age of 22.  He did not obtain one sooner because he did not have access to a car until age 22.  

According to an April 2004 letter, R.A.H., M.D., a private physician, noted that he began treating the veteran's son in 2000. He diagnosed the Veteran's son with post-traumatic brain syndrome, atherosclerotic heart and renal disease, chronic obstructive pulmonary disease, and chronic back pain.  The doctor also reported that the veteran's son was status post coronary artery vessel bypass surgery and placement of a defibrillator.  The doctor wrote that, according to the mother, the veteran's son experienced several significant traumatic injuries as a child. Reportedly, at six months of age, the veteran's son was thrown from an auto in an accident, resulting in a brain injury.  He also stated that at 17 the son sustained brain and bodily injuries from an assault, and he never finished high school. 

In December 2012, the appellant and his mother (widow) testified at a formal RO hearing.  He recounted the story of the motor vehicle accident he was involved in 1956 as a baby.  The widow indicated that due to the woman holding onto the appellant so tightly his "insides are an absolute mess."  She elaborated that the female friend was ejected from the car during the accident and was thrown across four lanes of a road, or roughly 100 feet, with the appellant in her arms.  She stated that the appellant was then taken to DePaul hospital, and that the records are "in that file somewhere.  If...that belongs to my husband.  But the writing and the printing is so vague you can barely make it out."  She indicated the Veteran was involved in a court case due to the accident, and that "the court" would have a copy of the record somewhere on laser film.  When asked what happened with the court case, she reported that she "felt sure that alcohol was involved."  Then there seemed to be some confusion regarding whether the Veteran was involved in a court case with a civilian or military court.  And the widow indicated that some of "his" (it is unclear if they are referring to the appellant or the Veteran) records were lost in a fire.  The Decision Review Officer (DRO) suggested that they attempt to get the records from the courthouse if they could remember where the case was held.  The DRO noted that they would need to have more specifics in order for the VA to assist in locating any records.  The appellant again recounted that he does not eat vegetables, fruit or meat.  They indicated that at age 17, the appellant was badly physically beaten during an attempted robbery (of his bicycle) by three men.  He reported he did not receive treatment after the assault.  The widow testified that the appellant can no longer mow grass because the last time he tried the mower nearly pulled him down.  When the DRO tried to explain that the evidence needed to show incapacity prior to age 18, the widow argued the law should be different, and that due to her and the appellant's poor financial situation they should be entitled to additional benefits.

In adjudicating a claim, the Board must assess the competence and credibility of the Veteran.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board also has a duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  The Board acknowledges that the Veteran is competent to give evidence about what he experiences.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  If the Board concludes that the lay evidence presented by a claimant is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the claimant's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.)

The reason for the appellant's failure to graduate high school varies from being beaten up over a quarter, being beaten up over his bicycle, and his decision to stop attending school due to a language requirement.  The timing of the reported assault is also varied, so that in one story the appellant was attacked the summer before his senior year of high school, and in another he was attacked with only three months until graduation.  Due to the varied reports, the Board finds that statements regarding the reasons for failing to graduate from high school lack credibility.

His school report cards include enrollment in classes for 1976/1977 for grade 12, but indicate he failed to attend classes 81 days out of the enrollment period.  Notably, the appellant would have been over the age of 18 as of August 1974.  Additionally, the appellant's mother has reported that the appellant was injured during a motor vehicle accident when he was a baby.  However, she is unable to recall if her son was diagnosed with anything after he was taken to the hospital following the accident.  Also, via the widow Dr. R.A.H. reported the appellant had traumatic brain syndrome as a result of both accidents; however, the appellant indicated he never sought treatment after the assault, and they both have argued that the appellant injured his "insides" as a result of the accident.  The full and correct history of either the assault or the accident are not necessary to determine whether the appellant was incapable of self-support prior to age 18, but the inconsistencies of the statements diminish the credibility of the appellant and the widow when they report his medical history prior to age 18.  

The Board finds that Dr. R.A.H.'s findings lack probative value because they are based on one version of the widow and appellant's stories of an accident and assault.  Dr. R.A.H. is diagnosing traumatic brain syndrome even though the appellant and widow never indicated they sought contemporaneous treatment for a head injury, and they indicated his "insides" where injured in the motor vehicle accident.

The record includes evaluation findings of a low-average intelligence, and notations of a medical history including "mild mental retardation."  In 2001, he was diagnosed with schizoid personality disorder and adjustment disorder.  These findings are all from 2000 and later.  When comparing the results reported of the CT scan of his head in 1993 to the CT scan in 2000, the appellant appears to have suffered "multiple foci of lacunar infarction" sometime in the intervening years.  Also, the 2001 examiner noted that the appellant's unusual responses may make the results of his testing unreliable.

A review of his school transcripts reveals that the Veteran was a poor to fair student who missed many classes and changed schools frequently.  He was able to take and complete normal curriculum courses, and he was in the 50 percentile on average during standardized testing.  He has been able to secure employment, including a six-year employment history at a retirement community, live with roommates on his own, and obtain a driver's license.  Thus, there is no indication that the appellant's low-average intelligence reached a level of mental incapacity for self-support prior to age 18.

The appellant's physical disabilities, which made it difficult for him to continue his employment as a groundskeeper, have not been shown to exist prior to age 18.  Again, the earliest record in the claims file is from 1993.  His heart condition appears to have been diagnosed in 2000.  And while it is unclear when the appellant's gastrointestinal complaints began, it does not appear the symptoms were significant enough that the appellant could not be employed in a predominantly outdoor occupation.  Therefore, entitlement to DIC benefits on the basis of the appellant being a "helpless child" before the age of 18, under 38 U.S.C.A. § 101(4)(a) (ii), cannot be established because it has not been shown that the appellant was permanently incapable of self-support by reason of a mental or physical condition prior to attaining the age of 18.  The questions at issue for "helpless child" status for an adult are whether the appellant was disabled and incapable of self-support upon his achieving the age of 18, and if so, whether this incapacity was chronic and ongoing in nature so as to preclude self-support in adulthood.  38 C.F.R. § 3.356; Dobson, supra.  As the preponderance of the evidence is against finding that the appellant was impaired prior to age of 18, the analysis is at an end, and the appellant cannot achieve claimant status as the "helpless child" of the deceased Veteran, and hence any claim for DIC benefits on that basis cannot be supported.  Id.

In conclusion, it is found that the preponderance of the evidence is against a finding of entitlement to recognition of the appellant as the helpless child of the Veteran.


ORDER

Entitlement to DIC benefits as an adult helpless child on the basis of permanent incapacity for self-support prior to reaching the age of 18 years.



____________________________________________
S.S. TOTH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs