Citation Nr: 18143377 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 16-26 926 DATE: October 19, 2018 ORDER Entitlement to recognition of the appellant as a helpless child based on permanent incapacity for self-support, establish prior to age of 18, is denied. FINDINGS OF FACT 1. The Veteran died in March 2000. 2. The appellant is the Veteran’s son. 3. The appellant was born in September 1984, and reached the age of 18 in September 2002. 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 son 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 FINDING AND CONCLUSION Permanent Incapacity for Self-Support The appellant seeks entitlement to dependency and indemnity compensation (DIC) benefits based on dependency status as a helpless child. He argues that he warrants DIC because he has been permanently disabled and incapable of self-support since at least the age of 13, due to the Veteran’s exposure to Agent Orange in the Republic of Vietnam. Specifically, he states that a temporal lobe brain tumor; spike waves in the left hemisphere of his brain; and epilepsy have rendered him incapable of self-support. Moreover, the appellant’s mother reports that the appellant has been diagnosed with bipolar mood disorder, serious middle ear problems, and a host of bacterial and viral infections. The appellant was born on September [redacted], 1984 and reached the age of 18 on September [redacted], 2002. VA law provides that the term “child of the veteran” 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 or an illegitimate child; and is under the age of 18 years; or before reaching the age of 18 years, became permanently incapable of self-support; or after reaching the age of 18 years and until completion of education or training, but not after reaching the age of 23, is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57. The focus of analysis must be on the individual’s condition at the time of his 18th birthday to determine whether that individual is entitled to the status of “child.” See Dobson v. Brown, 4 Vet. App. 443, 445 (1993). If the claimant is shown to be capable of self-support at 18, VA is required to proceed no further. 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 considered. The primary factors for consideration are: (1) The fact that an individual 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 kept 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 a consideration of 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. 38 C.F.R. § 3.356. While the evidence of record reveals that the appellant had medical issues before the age of 18, the record is fails to show that the appellant had become permanently incapable of self-support because of mental or physical defect prior to attaining the age of 18 in 2002. In Social Security records, the appellant indicates that he was able to work until November 2007, though he also reports his health problems began to impact him from birth. The medical records associated with the file tend to show that the veteran was not helpless as of September 2002. They reflect that he completed 1 year of college around that time, and was employed in a McDonalds from 2003 to 2005, after turning 18. The employment problems reported by the Veteran indicate such arose after turning 18, due to seizures and epilepsy. It is unquestioned that the appellant had difficulty with vision and hearing, as well as possible behavior, prior to 2002 due to diagnoses such as a right temporal lobe lesion. However, such was removed in 1999 without recurrence. At that time he describes standing and walking fairly normally. Headaches were controlled. His hearing was damaged to some extent; he reports 70 percent loss, but it is not clear when such occurred. Simply put, the Veteran struggled, but was still able to function and support himself by the time of his 18th birthday. He was not helpless according to the submitted evidence. The Board notes that although the Veteran has to a large extent assisted in securing relevant evidence, he has not supplied some completed releases despite repeated requests for such. The Board cannot consider this evidence or draw conclusions based on it, even if it may have been helpful to the claim. Although the appellant is the Veteran’s son, he is an adult, and is not a “child” for VA purposes. The appellant was born on September 21, 1984, and is not shown to be permanently incapable of self-support before the age of 18. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel