Citation Nr: 1752379 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-05 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to recognition of Z.G. as the "helpless child" of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran, R.G., and Z.G. ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran had active service from June 1978 to June 1981. Z.G. is his adult son. The appeal comes before the Board of Veterans' Appeals (Board) from a January 2011 rating decision by the Houston, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) sitting in Washington, D.C. A transcript of the hearing has been associated with the electronic claims file. The issue was remanded in July 2016 for further development. The Board has considered his claim and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any issue with VA's duty to assist, nor has it been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). FINDINGS OF FACT 1. The Veteran's son Z.G. was born in October 1991; his 18th birthday was in October 2009. 2. Z.G. 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 VA benefits as a helpless child of the Veteran have not been met. 38 U.S.C.A. § 101 (4)(A) (West 2014); 38 C.F.R. § 3.356 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks to have his son, Z.G., recognized as a "helpless child" on the basis of permanent incapacity for self-support prior to attaining the age of 18. The birth certificate of Z.G. reveals that he was born in October 1991; he therefore attained the age of 18 years old in October 2009. For purposes of determining eligibility as a claimant, a child must be unmarried and either must be 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. To establish entitlement to the benefit sought on the basis of being a helpless child, various factors under 38 C.F.R. § 3.356 are for consideration. See 38 C.F.R. § 3.356. The 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 Court has held that, in "helpless child" cases, the focus must be on the claimant's condition at the time of his 18th birthday. See Dobson, 4 Vet. App. at 445. In other words, for purposes of initially establishing helpless child status, the claimant's condition subsequent to his 18th birthday is not for consideration. If a finding is made that a claimant was permanently incapable of self-support as of his 18th birthday, however, 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 age 18, VA is required to proceed no further. Id. The evidence of record contains a June 2010 VA Form 21-686c, Declaration of Status of Dependents, in which the Veteran asserted that Z.G. has had ADHD (attention deficit disorder with hyperactivity) most of his life. An October 2010 examination report authored by Dr. A.L.A., reflects that Z.G. presented with worsening depression. His diagnostic impressions were depression and anxiety. A November 2010 letter from Faith Family Clinic reflects that Z.G. began attending the clinic in September 2010 and was noted to have significant ADHD and chronic fatigue syndrome with minimal response to medication therapy. It was noted he was a special education student; date of onset is unknown probably from childhood and that his expected graduation date from high school was June 2012. (See October 2009 VA Form 21-674c). A November 2010 Adult Report IQ with Mental Status Examination reflects that he was diagnosed with Axis I Generalized Anxiety Disorder; Panic Disorder with Agoraphobia; ADHD, Combined Type R/O Mathematics Disorder; and Axis II Schizoid Personality Disorder. He was assigned a GAF score of 40. The examiner stated that he had an IQ of 80. His strengths consisted of visually mediated tasks and relative weakness in working memory and processing speed. He was functioning at the average range for reading, but borderline range for spelling and arithmetic. He was relatively able to reason, but was struggling to make academic, personal, and social adjustments. There was no evidence of memory loss or dementia. A December 2010 Psychiatric Review Technique reflects anxiety-related disorders. It was stated that a medically determinable impairment was present that does not precisely satisfy the diagnostic criteria above "GAD, Panic D/O; ADHD." Moderate restriction of activities of daily living; difficulties in maintaining social functioning, and difficulties in maintaining concentration, persistence, or pace. No episodes of decompensation. He was not significantly limited in his ability to remember locations and work-like procedures or the ability to understand and remember very short and simple instructions or to carry out very short and simple instructions; simple work-related decisions. He lacked the ability to complete a normal work week without interruptions from psychologically based symptoms or to perform at a consistent pace without an unreasonable number and length of rest periods. An April 2011 letter authored by Dr. K. noted that he treated Z.G. for attention deficit disorder, ADHD, asthma and insomnia. It was noted further that due to the ADHD, he suffers from related problems including anxiety, depression, easily distracted, often forgetful, makes careless mistakes, impulsive behavior, low self-esteem, troubled relationships, and poor school performance. A May 2015 non-VA mental status examination report showed that Z.G.'s current diagnoses of schizoid personality disorder, generalized anxiety disorder, agoraphobia, panic disorder, ADHD, and inattentive presentation. It was determined that Z.G. appeared to have significant limitation in his ability to reason and was struggling to make occupational, personal and social adjustments independently. It was thought that his prognosis would improve with the addition of individual psychotherapy and ongoing medication management. It was noted that he was not capable of managing benefit payments independently, but appeared to understand the meaning of filing for benefits. It was noted in a footnote that diagnosis was considered provisional and was contingent upon substantive validation from historical record. A January 2017 VA examination reflects a reported history of medical illness such as asthma and RSV (respiratory syncytial virus), which caused him to be hospitalized. The mother reported that he met developmental milestones but would "collapse and turn purple as a child and bump into things." He was in special education through his schooling and graduated high school in May 2011. There was no evidence of mental retardation. He never had any behavioral problems and attendance was good. He tried college for two semesters, but did poorly because he was not taking his medication. He interviewed for a job but was not given the job. In 2013, he tried one day of working as a dishwasher at a restaurant but was not asked to come back. He has no other employment during his lifetime. He was not married and lived with his parents. Upon mental status examination, he was well-groom and cooperative. He had fair eye contact and gave short answers to questions. His speech was normal rate and volume, mood was euthymic, and affect was blunted. He knew the date and place and his name and birthday. He denied symptoms of depression, but reported anxiousness/paranoia, and concentration and memory problems. The examiner rendered a diagnosis of ADHD by history and Schizoid Personality Disorder. He had a GAF score of 70. The examiner concluded that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claims in-service injury, event or illness. The examiner's rationale was that the evidence showed that the Z.G. has a history of ADHD and repeated ninth grade twice but still graduated from high school. He was in special education throughout schooling but there was no formal diagnosis of any type of mental retardation or autism spectrum disorders. She further stated: "[i]n my opinion there [was] no objective evidence in records that this patient was permanently incapable of self-support due to mental, specifically to include ADHD, or physical incapacity, as of his 18th birthday in October 2009." The examiner stated that although he has not been able to hold a job, there was no evidence that he was actively trying to find employment. She further stated that he was able to comprehend my questions and gives short responses and that she did not see any proof that he was physically or mentally incapable of self-support at the time of his 18th birthday. The Social Security Administration (SSA) records reflect that he was in receipt of disability benefits from September 30, 2009 due to anxiety and ADD/ADHD. The SSA Functional Report-Adult Section A-General Information reflects in part: that he lived in a house by himself. He further stated that his mother or father occasionally spent the night when he suffered from anxiety. He took care of his dog, cleaned the yard, and mowed the lawn. He has difficulty sleeping and does not like to be around people. He stated that he washed his hair twice a week (and that if his parents had lived with him he would wash it more often). He goes out alone and shops via in stores or by computer. During the May 2016 hearing, R.G. who's is Z.G.'s mother testified that he is currently in receipt of disability benefits from SSA. She stated that he has poor spelling and helps him with applications. She also testified that he likes to spend the majority of his time in his room. She also tried to teach him how to drive, but he did not like it. She essentially testified that she owns two homes and Z.G. lives in one and she and her husband live in the other (Z.G. did not want to move in with them). The Board finds that the preponderance of the evidence is against the claim of entitlement to recognition of Z.G. as the "helpless" child of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18. The Board acknowledges that when he attained the age of 18, Z.G. was still enrolled in school and was not employed. Furthermore, he is receiving disability from SSA for anxiety and ADD/ADHD. Having said that, the Board also notes that the VA examiner found his impairments would not prevent him from working. For example, working from home. Further, the SSA Functional Report-Adult Section A reflects that he lived on his own and took care of himself and a dog, albeit, with some assistance from his family. The Board acknowledges that the SSA issued a disability determination finding that the Z.G. was disabled for Social Security purposes as of 2009. The Board notes that while findings made by the SSA are relevant and thus must be considered by the Board, the findings of SSA are not binding on the Board, since the rules and regulations governing the award of Social Security disability benefits differ from those governing the award of VA benefits. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). The Veteran has not submitted any additional evidence in support of his claim. His assertions regarding the need for him to take care of his son on a continual basis are competent evidence that Z.G. may have been permanently incapacitated for self-support prior to attaining age 18. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the fact remains that the available evidence demonstrates that Z.G. was still considered capable of self-support prior to attaining age 18. Accordingly, the Board finds that Z.G. is not entitled to recognition as the "helpless" child of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18. Although the Board is sympathetic to the claim, the preponderance of the evidence is against it; thus, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to recognition of Z.G. as the "helpless child" of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18 is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs