Citation Nr: 1803488 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 09-47 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to recognition of the Veteran's son, J., as a "helpless child" on the basis of permanent incapacity for self-support on or before his eighteenth birthday. 2. Entitlement to an apportionment of the Veteran's VA compensation benefits. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, A.V., M.V., and Veteran ATTORNEY FOR THE BOARD Mary E. Rude, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to September 1969. The appellant is the Veteran's former spouse, and the custodian of their son, J. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) apportionment decision dated in September 2008 that denied the appellant's claim for an apportionment of the Veteran's VA compensation. In addition, in a July 2013 rating decision, the RO denied recognition of the Veteran's son, J., as a "helpless child." Ordinarily, these issues would not be addressed in the same decision, but because the "helpless child" claim is an essential part of the claim for an apportionment, the issues will be decided together. The case was remanded in February 2016 to afford the appellant and the Veteran a Board hearing. That hearing was held in October 2017. FINDINGS OF FACT 1. The Veteran's son, J., was born in July 1973; his eighteenth birthday was in July 1991. 2. The preponderance of the evidence is against finding that J. was permanently incapable of self-support by reason of a mental or physical condition prior to attaining the age of 18. 3. The appellant is not currently the Veteran's spouse, and she and the Veteran do not have any children under the age of 18. CONCLUSIONS OF LAW 1. The criteria for entitlement to VA benefits as a helpless child of the Veteran have not been met. 38 U.S.C. § 101(4)(A) (2012); 38 C.F.R. § 3.356 (2017). 2. The criteria establishing entitlement to an apportionment of the Veteran's compensation benefits have not been met. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450-3.458 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). The Board notes that a claim for apportionment is a "contested claim" subject to special procedural regulations as set forth in 38 C.F.R. §§ 19.100-19.102 (2017). The record demonstrates that contested claim procedures have been followed in this appeal, and that there is no evidence or allegation that such procedures have not been followed. The appellant asserts that the Veteran's son, J., is a helpless child, and that apportionment of the Veteran's VA compensation should be allowed in order to assist in his care. Compensation benefits may be apportioned on behalf of a veteran's spouse, children, or dependent parents when certain conditions are met. 38 U.S.C. § 5307. A "general" apportionment may be paid if the Veteran is not residing with his spouse or if his children are not residing with the Veteran and the Veteran is not reasonably discharging his responsibility for the spouse's or the children's support. See 38 C.F.R. § 3.450(a)(1)(ii). The United States Court of Appeals for Veterans Claims has held that it is not necessary for the claimant to establish the existence of hardship in order to obtain an apportionment under 38 C.F.R. § 3.450. See Hall v. Brown, 5 Vet. App. 294 (1993). Without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation may be specially apportioned between the Veteran and his dependents on the basis of the individual case as long as it does not cause undue hardship to the other persons in interest. In determining the basis for special apportionment, consideration is to be given to such factors as the amount of VA benefits payable, other income and resources of the Veteran and those dependents on whose behalf the apportionment is claimed, and the special needs of the Veteran, his dependents, and the apportionment claimants. See 38 C.F.R. § 3.451. Both of these types of apportionments are payable to a spouse or dependent. For VA purposes, a dependent "child" is defined as a person who is unmarried, under the age of 18 years, and who is: a legitimate child, a legally adopted child, a stepchild, or illegitimate child if acknowledged or under court order to provide support for that child, or shown by satisfactory evidence to be the child of the Veteran. 38 U.S.C. § 101(4)(A). A "child" is also defined as one who, before attaining the age of 18 years, became permanently incapable of self-support. 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. § 3.356. This status is generally referred to as a "helpless child," even though the child is over the age of 18. The focus of the adjudication must be on the child's condition at the time of his eighteenth birthday and whether he was capable of self-support at that time. Dobson v. Brown, 4 Vet. App. 443, 445 (1993). If the claimant is shown to be capable of self-support at age 18, VA is required to proceed no further. Id. In this case, it is not in dispute that the appellant and the Veteran are no longer married. A Decree of Divorce shows that they were divorced in February 1979. During their marriage, they had three children, including J., who was born in July 1973. It is not contested that any child was under the age of 18 during the course of the current appeal. The evidence is clear from J.'s medical records and the written statements of his family members and doctors that he is not currently capable of self-support. 38 C.F.R. § 3.356(b)(1). Unfortunately, under the governing law the Board is not able to find that J. became incapable of self-support prior to or upon attaining the age of 18 years. 38 C.F.R. § 3.356(b)(2). The Board has reviewed all of the evidence of record, and finds that the preponderance of the evidence shows that J. did not begin to manifest serious psychiatric symptoms, later diagnosed as paranoid schizophrenia, until after his eighteenth birthday. In several written statements and at the October 2017 Board hearing, the appellant has stated that after they were divorced, the Veteran was court-ordered to pay child support, but instead fled to Japan and did not make any of his payments. She has written that she incurred a great deal of debt taking care of the children on her own without help from the Veteran, and that she still financially struggles today. She reports that she is still taking care of her son J., who is seriously mentally ill. At the Board hearing the appellant stated that her son, J., started to develop paranoid schizophrenia at the age of 18, and that he was formally diagnosed in 1998. She stated that J. was able to graduate from high school and start college, and that he worked in fast food prior to his schizophrenia diagnosis. A.V., the daughter of the Veteran and sister of J., stated that it was typical for someone with schizophrenia to not manifest symptoms until after the age of 18. Although the appellant wrote in June 2009 and August 2013 letters that J. was diagnosed with schizophrenia at age 17 and that she had been told by J.'s prior psychiatrist that J.'s illness existed prior to his becoming 18, the majority of her written statements and her October 2017 testimony indicate that the Veteran did not begin to manifest psychiatric symptoms until after attaining age 18. This is further supported by statements from J.'s sisters. Most notably, the medical evidence of record shows that J. became unable to support himself due to his psychiatric disease after turning 18. In a September 2017 statement the appellant wrote the J. began to manifest symptoms at age 18, when he was in college and would communicate abnormal concerns about colors and numbers, and his increasing delusions led to him being unable to continue with school. J's sister M.V., a licensed social worker, wrote in December 2012 that her brother's symptoms began during his first year in college when he had just turned 19. She described the extensive care that he has required from their mother and the debt that she has incurred taking care of his medical needs. J's private medical records show that in October 1998, when he was 25 years old, he was admitted for paranoid and delusional thinking and erratic behavior, and was diagnosed with psychotic disorder, rule out major depressive disorder with psychotic features, schizophrenia, or delusional disorder. He did not report any previous psychiatric treatment. Upon discharge from the hospital, J. was diagnosed with schizophreniform disorder. Later treatment records from 2010-2013 showed that he was being treated for paranoid schizophrenia. Dr. R.Y., a psychiatrist, submitted a letter in September 2017 stating that J. had schizophrenia, paranoid type, and his initial evaluation reported that his first break was in 1998. While there is also a September 2017 letter from physician Dr. R.K. stating that J. "reports that he had symptoms of schizophrenia that appeared in his early teen years and worsened at age 13 around the time of a jaw injury on a trampoline," the Board does not find that this letter holds any significant probative value in deciding the issue on appeal. The physician only writes that J. had reported that his symptoms began at age 13, and the plain reporting of a lay person's presentation of his own history is not competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ("a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional"). The assertion that the Veteran's symptoms began at age 13 is not consistent with the testimony of the J.'s mother or sisters, or with the medical evidence, which does not show treatment for a psychiatric disorder until J. had reached the age of 25. In any event, the September 2017 letter does not demonstrate that J. was permanently incapable of self-support prior to the age of 18. The preponderance of the evidence shows that at the time of J.'s eighteenth birthday, he had not yet begun to manifest serious psychiatric symptoms. The evidence shows that these symptoms only began to manifest during his first year in college, at age 18 or 19, and did not become so serious that he required hospitalization until he had reached age 25. He was able to successfully perform as a student in high school and his first year of college prior to that time. The evidence preponderates against finding that J. was incapable of self-support prior to age 18. The Board therefore finds that J. was not incapable of self-support prior to the age of 18, and he is not a "helpless child." See Dobson, 4 Vet. App. at 445. The Board must also find that an apportionment of the Veteran's VA compensation is not warranted. The appellant is not eligible for apportionment because she is not the Veteran's spouse, and the Veteran does not have any children under the age of 18 or any child who has been found to be a "helpless child" that could be eligible for apportionment. 38 U.S.C. § 5307; 38 C.F.R. § 3.450, 3.451. The Board sympathizes with the appellant and her assertions that raising three children on her own, including a grown child who is now seriously mentally ill. The Board finds that this has been a great emotional and financial hardship for the appellant, and the undersigned commends the appellant for her unwavering dedication and love for her child. Perhaps the law should be changed to recognize helpless children of veterans after the age of 18. The "fact (however) that Congress might have acted with greater clarity or foresight does not give (the Board) a carte blanche to redraft statutes in an effort to achieve that which Congress is perceived to have failed to do." United States v. Locke, 471 U.S. 84, 95 (1985). The criteria for finding that the appellant has a "helpless child" or that she and her son J. are eligible for apportionment have not been met. The Board has no authority to grant benefits in this matter on an equitable basis. Darrow v. Derwinski, 2 Vet. App. 303 (1992). As the preponderance of the evidence is against the appellant's claim for apportionment, the claim must be denied. ORDER Entitlement to recognition of the Veteran's son, J., as a "helpless child," on the basis of permanent incapacity for self-support on or before his eighteenth birthday, is denied. Entitlement to an apportionment of the Veteran's VA compensation benefits is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs