Citation Nr: 18140776 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 09-47 211 DATE: ORDER Recognition of E.B., IV, as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18, is denied. FINDING OF FACT E.B., IV has not been shown to have been permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria for recognition of E.B., IV 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). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from October 1974 to September 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2006 and July 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran requested Board videoconference hearing. The hearing was scheduled for May 2017. Various attempts were made to contact the Veteran and remind him of the hearing, however, the Veteran failed to report for his scheduled hearing without showing a good cause. The Veteran’s hearing request is therefore considered to have been withdrawn. See 38 C.F.R. § 20.704(d) (2017). In June 2017, the Board remanded the appeal for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to recognition of E. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18. The Veteran contends that his son, E.B., IV, was rendered incapable of self-support prior to attaining the age of 18. 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. 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 or her 18th birthday. See 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 her18th birthday is not for consideration. If a finding is made that a claimant was permanently incapable of self-support as of his or her 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. By way of background, the Veteran’s son, E., attained the age of 18 in June 2001. The Veteran contends that E. constituted a helpless child because he became incapable of self-support prior to the age of 18 due to his disabilities. Turning to the evidence, in January 2008, the Veteran submitted a letter from E.B., IV’s former treating physician, Dr. A.D., who stated that E. had severe depression. During a June 2011 Decision Review Officer Conference, the Veteran stated that E.B., IV fell from a grocery store shopping cart when he was a baby and sustained a concussion. He reported that E.B., IV had always been in special education and attended special schools. E.B., IV had never worked and received Social Security Income (SSI). A September 2016 Social Security Administration (SSA) Report of Contact indicated that, when speaking with E. over the phone, he was “extremely difficult to understand and clearly had a mental health issue affecting his cognition.” He was unable to describe his current treatment, but stated that he had to take anger management classes. He had been incarcerated for six months and was released in March 2016. An October 2016 mental status examination for SSA purposes indicated that E.B., IV lived with his father and had never lived independently. He paid his own bills, cooked, and performed household chores. He did not drive, but used public transportation often. He did not go anywhere except for necessary places like appointments. He had a good relationship with his family and had friends. E.B., IV demonstrated difficulty with concentration, but his persistence and pace were adequate. He left school in the eleventh grade due to learning and behavioral challenges, but later earned a GED. He was diagnosed with borderline intellectual functioning. The evaluating psychologist opined that E.B., IV could understand and carry out simple instructions, but not more complex instructions. He did not appear to have concentration and persistence based on his performance during the mental status examination. He did not appear to be able to handle the normal demands and daily stress in a work setting. The psychologist opined that E.B., IV would be unable to maintain effective social interaction on a consistent and independent basis with others in the workplace. A January 2017 psychological report for SSA purposes indicated that E.B., IV received a mix of regular and special education curriculum in school and dropped out of high school in the eleventh grade. He had never worked. He was incarcerated from December 2015 to July 2016 on a domestic violence charge. He had been prescribed Zoloft by his primary care physician, but the Veteran indicated that E.B., IV was non-compliant with the medication. The Veteran and E. vaguely reported a psychiatric hospital visit or consult when E. was 21 years old. E.B., IV reported a possible depressed mood, and the psychologist noted that potential depressive signs included mild psychomotor retardation. He had lived with the Veteran since childhood and had never lived independently. He participated in some household chores, including dishes, simple food preparation, assisting with laundry and groceries, and sweeping. His current daily activities included yardwork, televised sports, and reading. He did not have a drivers’ license, but was experienced with the city bus system. He was irregular and independent in bathing. His only social interaction was with the Veteran and phone calls with his siblings. He reported stable levels of functioning over the past year at the current level. On testing, E.’s overall intelligence was in the borderline range, with verbal comprehension in the extremely low range, and word knowledge and verbal concept formation in the borderline range. Word reading was in the borderline range, consistent with assessed intellectual difficulties. He was able to read some multi-syllable words. Remaining academic skill areas were in the extremely low range, below expectation from assessed intellectual abilities. The psychologist diagnosed E.B., IV with borderline intellectual functioning and a specific learning disorder in reading comprehension. As to functional capacity, the psychologist stated that he was able to understand, carry out, and remember instructions for simple procedures. His ability to sustain concentration and to persist in work-related activity at a reasonable pace was fair. E.B., IV’s ability to maintain effective social interaction with supervisors, co-workers, and the public was mildly impaired. The psychologist opined that E.’s ability to handle normal pressures of a competitive work setting was mildly impaired. In an August 2018 VA medical opinion, the examiner gave a detailed summary of the evidence of record. The examiner noted that the Veteran and E.B., IV had given inconsistent statements over the years on various issues and opined that the Veteran and E. are not credible historians. The examiner discounted the findings of October 2016 and January 2017 SSA psychological evaluations as they were based on the subjective report of the Veteran and E.B., IV, and not on any supporting medical records. The examiner further opined that it is less likely than not that E. was permanently incapable of self-support at the age of 18 due to any physical or mental health conditions. The VA examiner stated that the objective records failed to show any medical conditions present in E.B., IV, which would adversely impact his ability to hold employment, and specifically noted that an undated SSA continuing disability review report only reflected a diagnosis of depression and indicated that E.B., IV had not seen any health professional in the prior 12 months for treatment. The examiner also specifically noted that the record indicated that E.B., IV had no difficulty performing activities of daily living (ADLs), including doing chores, using public transportation, shopping, managing money, walking, standing, lifting, using all extremities, sitting, hearing, speaking, seeing, concentrating, remembering, understanding or following directions, completing tasks, or getting along with people. Therefore, “based upon the absence of clinical records showing any physical health disability that would cause any limitations in working,” the examiner opined that it is less likely than not that E.B., IV was permanently incapable of self-support at the age of 18. Based on the evidence record, the Board finds E.B., IV was not rendered incapable of self-support prior to attaining the age of 18. The October 2016 and January 2017 psychological evaluation reports both indicated that E. had diagnoses of borderline intellectual functioning and a learning disability, based on objective testing, and the Board finds that these diagnoses, as well as the relative severity of related functional impairment, were likely present and unchanged prior to E.B., IV’s attainment of the age of 18. The Board finds both the January 2017 psychologist’s opinion (that his ability to handle normal pressures of a competitive work setting was mildly impaired due to his diagnosed disabilities) and the August 2018 medical opinion (that it is less likely than not that he was permanently incapable of self-support at the age of 18)) to be highly probative. Both of these opinions include a detailed discussion of his specific functional abilities and impairments, which support their conclusions. Despite the fact that E.B., IV has lived with the Veteran since childhood and has never worked, the evidence reflects that he is able to perform all activities of daily living, including household chores and frequently navigating public transportation, and has obtained a GED. Thus, the weight of the evidence indicates that E.B., IV has been capable of self-support. Although the October 2016 psychological report indicated that E.B., IV would be unable to maintain effective social interaction on a consistent and independent basis with others in the workplace, this opinion focuses on his ability to interact socially in the workplace and is not the same as being unable to maintain employment. Thus, the Board finds the October 2016 psychologist’s opinion to be of limited probative value. (Continued on next page) In sum, the Board finds that while E.B., IV’s learning disability and borderline intellectual functioning existed prior to his becoming 18 years of age, they are not shown to have rendered him incapable of self-support. Therefore, recognition of E.B., IV as a “helpless child” on the basis of permanent incapacity for self-support prior to attaining age 18 is denied. See 38 C.F.R. § 3.102. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 510(b); 38 C.F.R. § 4.3. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel