Citation Nr: 1323338 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-28 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the Veteran's son, KB, is entitled to recognition as a helpless child on the basis of permanent incapacity for self-support prior to attaining the age of 18 years. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active military duty from July 1980 to December 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Veteran's claim was remanded in March 2012 for additional development. The required development has been completed, namely the Social Security disability records for the Veteran's son, and the case has been returned to the Board for further appellate adjudication. FINDINGS OF FACT 1. The Veteran's son, KB, was born in December 1989 and attained the age of 18 in December 2007. 2. At the time of his 18th birthday, C.B. had mental defects, namely, a lifelong intellectual disability with a diagnosis of autism, rendering him permanently incapable of self-support. CONCLUSION OF LAW The criteria for recognition of the Veteran's child 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 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 her child 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 recognition of her child as a "helpless child" on the basis that his lifelong intellectual disability 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 son, KB, was born in December 1989 and reached 18 years of age in December 2007. Thus, evidence discussing his condition at that time is paramount to the claim. The current medical evidence demonstrates that KB is diagnosed with a lifelong intellectual disorder. The Veteran contends that KB's intellectual disorder was sufficiently severe prior to his 18th birthday that self-support was not possible. A private medical record dated January 2008 indicates that KD's "problem" was autism/academically challenged. The physician stated that KD's cognitive function is certainly not where it should be for functioning in this world. The physician instructed the Veteran to apply for Social Security disability. A determination from the Social Security Administration (SSA) indicates that KD's inability to engage in any substantial work was due to mental disability that had been ongoing since January 1, 2008, approximately two weeks after his 18th birthday. The Veteran indicated in the questionnaire portion of the Social Security application that her son had been diagnosed with autism at the age of two years old. The SSA determination was based on a psychological evaluation dated March 2008. The evaluation indicated that KD's full scale IQ was in the extremely low range of functioning and was consistent with that of an individual with mild mental retardation. The report indicates that KD is not able to manage his finances School records dated April 2008 indicate that KB received special transportation to and from school. He was working at the cafeteria at the school as part of a Community Based Instruction with vocational training program. KB was working towards a special diploma. His Individual Educational Plan (IEP) goals included using basic phonetic principals when reading new words, determining the main idea of a passage, and cursive writing. The IEP notes that KB can write much of his personal information and can write his name in cursive. The alternate assessment participation checklist indicates that KD requires extensive direct instruction in functional academics and vocational competencies as well as domestic, community living and leisure activities and he has deficits in adaptive behavior as demonstrated by the inability to function effectively and independently in everyday living skills across a variety of settings. Testing conducted in May 2007 indicates that KD could do some addition but could not subtract double digit numbers and was not capable of multiplication or division. His reading test indicated that he knew "cat" and "in" but missed 53 out of 55 other words to include "book", "tree", and "how". The Veteran submitted a letter detailing her son's disabilities in April 2013. She indicated that her son had problems with communication to include understanding and that he could not read or drive. When frustrated, he has self-injurious behavior and can be destructive, punching holes in the walls and trying to hit the Veteran, his mother. She further indicated that KD is employed at Goodwill as a door greeter, a charity which employs people with disabilities, working twenty hours a week at a pay rate of $7.00 per hour. The Board notes that KD's employment at Goodwill is apparently employment afforded solely upon sympathetic considerations and which involves no actual or substantial rendition of services. 38 C.F.R. § 3.356(b). As such, this evidence should not be considered as rebutting permanent incapability of self-support otherwise established here. The Board finds that, based on the evidence of record, that KD was not able to support himself by means of working in a non-supported activity at the time of his eighteenth birthday. Additionally, the Board notes that the SSA has determined KD to be unable to provide for himself on a consistent and meaningful basis and has adjudicated him as permanently disabled. In light of the foregoing, the Board finds that the preponderance of the probative evidence of record shows KD 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 child as a helpless child, on the basis of permanent incapacity for self-support prior to attaining the age of 18, is granted. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs