Citation Nr: 18142954 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 15-03 947A DATE: October 17, 2018 ORDER Entitlement to permanent incapacity for self-support for Marie Zigon is denied. FINDINGS OF FACT 1. The Veteran died on October [redacted], 1976. 2. The appellant is the Veteran’s daughter. 3. The appellant reached the age of 18 on October [redacted], 1972. 4. The appellant did not become permanently incapable of self-support by reason of mental or physical defect prior to attaining the age of 18. CONCLUSION OF LAW The criteria for recognition of the Veteran's daughter as a helpless child on the basis of permanent incapacity for self-support prior to attaining age 18 have not been met. 38 U.S.C. §§ 101 (4)(A), 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.57, 3.102, 3.159, 3.315, 3.356 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1944 to December 1945. In May 2018, the appellant and two witnesses testified at a Board hearing. The transcript is of record. 1. Entitlement to permanent incapacity for self-support The appellant seeks recognition as a helpless child for the purposes of VA benefits on the basis that she became permanently incapable of self-support before attaining the age of 18 years. The Board notes that the appellant is currently 63 years of age. VA provides certain benefits for a child of a veteran who is shown to be permanently incapable of self-support because of mental or physical defect by or before her 18th birthday. See 38 U.S.C. § 101 (4)(A)(ii); 38 C.F.R. §§ 3.57 (a)(1)(ii), 3.356. 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. The marriage of a child of a veteran shall not bar recognition of such child as the child of the veteran for benefit purposes if the marriage was void or has been annulled by a court with basic authority to render annulment decrees, unless the Secretary determines that the annulment was secured through fraud by either party or collusion. 38 U.S.C. § 103 (e); see also 38 C.F.R. § 3.55 (b)(1). On or after January 1, 1975, marriage of a child terminated prior to November 1, 1990, shall not bar the furnishing of benefits to or for such child provided that marriage has been dissolved by a court with basic authority to render divorce decrees, unless VA determines that the divorce was obtained through fraud or collusion. 38 C.F.R. § 3.55 (b)(2). A child must be shown to be permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. 38 C.F.R. § 3.356 (a). A determination concerning whether a child is shown to be permanently incapable of self-support will be made solely on the basis of whether the child is permanently incapable of self-support through her 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. 38 C.F.R. § 3.356 (b) To establish entitlement to the benefit sought on the basis of being a helpless child under 38 C.F.R. § 3.356, there are several principal factors that are considered. 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. 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. 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. Id. 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. Id. The Board notes that, in a case 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 her 18th birthday is not relevant. However, if a finding is made that a claimant was permanently incapable of self-support as of her 18th 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 the age of 18, VA is required to proceed no further. Id. In this case, the appellant left home to marry in January 1971. While the marriage certificate lists the appellant’s age as 19 years, she was only 16 years old at the time of her marriage. The appellant obtained a divorce in April 1975 and, as the marriage was terminated after January 1975 but before November 1990, she is not barred from obtaining benefits. See 38 C.F.R. § 3.55 (b)(2). Nonetheless, it tends to weigh against a finding of permanent incapacity for self-support to the extent it indicates a degree of independence. The appellant was successfully able to leave her home, obtain a marriage certificate, and get married. The record does not contain any medical treatment records or other objective medical evidence for the time-period prior to the appellant obtaining the age 18. The only objective medical evidence of record consists of a medical prescription note dated August 19, 2012, indicating that the appellant is treated for paranoid schizophrenia as well as an article about Seroquel. The record contains lay statements and testimony from the May 2018 hearing. The Board notes that the appellant and her witnesses are competent to provide testimony as to the presence of observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007). At the hearing, the appellant’s sister, Ms. A. testified that the appellant quit school in 10th grade and ran away to get married. Ms. A. reported that the appellant had been committed to a community medical center psychiatric ward two or three times prior to the age of 17 and would hallucinate, have erratic and violent behavior and struggled with self-care. The appellant and Ms. A. both testified that the appellant had previous employment at a few different places, to include a factory; however, they were unable to confirm if the employment occurred prior to her 18th birthday. Ms. A. opined that the appellant was unable to hold down a full-time job prior to the age of 18, due to her mental health symptoms. The record does not contain any evidence verifying the appellant’s dates or places of employment. Additionally, the record contains several statements from the appellant’s sisters. D.Z.C. reported that the appellant was “not normal” at the age of 16, as she would stare at nothing and laugh and have frequent moments of rage. She further noted the appellant was admitted at least twice to the community medical center before becoming uncontrollable and being admitted to the state hospital. Another sister of the appellant’s, H.Z.B. also described the appellant as “not quite normal” and reported that her condition progressed after her abusive marriage. The Board has carefully considered all the lay statements and testimony of record. The Board finds that these statements are indicative of psychological difficulties manifesting prior to the attainment of the age 18. However, the appellant’s ability to meet someone, leave home on her own and obtain a marriage license and remain married for some time prior to the age of 18 shows that her mental disorder was not at a level of severity that would permit a finding of being permanently incapacitated or incapable of self-support prior to 18. While there is testimony that the appellant was hospitalized several times prior to the age of 18 for her mental problems, there is also the fact that the appellant was released from the facilities. The fact that her treating health care professionals discharged the appellant after treatment does not indicate that the appellant was permanently incapable of self-support at that time. This evidence tends to suggest that the appellant was of a sufficient level of functioning that she could be discharge. There is also evidence that the appellant was able to obtain and keep a job or jobs for some of the pertinent time period prior to the age of 18. This evidence also tends to establish that the appellant was not incapacitated by her mental disorder prior to age 18. There is testimony that the appellant was incapacitated by the age of 21 and institutionalized but this is three years after the pertinent time period. Unfortunately, the Board finds the evidence of record insufficient to establish that the appellant was permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. See 38 C.F.R. § 3.356. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel