Citation Nr: 18143783 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 14-00 865 DATE: October 22, 2018 ORDER Entitlement to recognition of S. as the Veteran’s dependent child for VA purposes is denied. Recognition of T. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is granted. FINDINGS OF FACT 1. The Veteran did not legally adopt S. and his custody of S. is not the equivalent of an adoption under Ohio state law. 2. T. has been shown to have been permanently incapable of self-support prior to attaining the age of 18. CONCLUSIONS OF LAW 1. The criteria for recognition of S. as the Veteran’s dependent child for VA purposes are not met. 38 U.S.C. § 101(4) (2012); 38 C.F.R. § 3.57 (2017). 2. The criteria for recognition of T. as a “helpless child” of the Veteran have been met. 38 U.S.C. § 101(4)(A) (2012); 38 C.F.R. § 3.356 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from February 1965 to February 1968. He also had periods of unverified service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In January 2011, the RO denied recognition of S. as the Veteran’s dependent child for VA purposes. In a January 2015 rating decision, the RO denied recognition of T. as the helpless child of the Veteran on the basis of permanent capacity for self-support prior to attaining the age of 18. The Veteran has another appeal before the Board. Because that appeal involves issues dependent on different law and facts, it is the subject of a separate decision. See BVA Memorandum No. 01-18-04; VA Purplebook 01-18-v1.0.0. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions 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). Increased Rate for Dependents 1. Entitlement to recognition of S. as the Veteran’s dependent child for VA purposes The Veteran seeks to establish recognition of S. as his dependent child for VA purposes. The Veteran contends that because he has had custody of S. and taken various acts such as claiming S. as a dependent on tax returns, S. should be recognized as his dependent for VA purposes. After a careful review of the record, the Board finds that recognition of S. as the Veteran’s dependent child for VA purposes is not warranted. In this case, it is clear that S. is not a legitimate child or stepchild of the Veteran. See March 2008 Court Order. Accordingly, for the purposes of establishing dependency status, the Board’s consideration is limited to whether S. is the legally adopted child of the Veteran. Under VA regulations, an adopted child means a child adopted pursuant to a final decree of adoption, a child adopted pursuant to an unrestricted interlocutory decree of adoption while remaining in the custody of the adopting parent (or parents) during the interlocutory period, and a child who has been placed for adoption under an agreement entered into by the adopting parent (or parents) with any agency authorized under law to so act, unless and until such agreement is terminated, while the child remains in the custody of the adopting parent (or parents) during the period of placement for adoption under such agreement. 38 C.F.R. § 3.57(c). In support of this claim, the Veteran submitted a February 2008 letter from the County Department of Job and Family Services indicating that the Veteran and his wife had been granted legal custody of S. and had authorization to seek medical treatment. The Veteran also submitted a March 2008 Order in which an Ohio court awarded custody of S. to the Veteran and his wife. In February 2011, the Veteran explained that S. is his great niece. He and his wife got custody of S. after she was removed from an abusive home, with the understanding that they would have custody of her until she turned 18 years old. The Veteran stated that S. had been accepted by the United States Department of Defense (DoD) (including Tricare) and United States Office of Personnel Management. He claimed S. as a dependent on his tax returns. The Veteran received no child support or cash assistance for S., and was fully responsible for her care. He stated that he and his wife had not officially adopted S. because of the expense, but that there was no way S. would ever be returned to her parents because they were not mentally capable of raising her. Under the facts of this case, the record does not contain a Court Order of adoption or any other evidence to support adoption, and the Veteran does not contend that he has adopted S. The Board recognizes that the Veteran has had custody of S. since March 2008 and was granted legal custody of S. by an Ohio court. However, there is nothing in the record to indicate that Veteran has legally adopted S., as is required for recognition of S. as the Veteran’s child for VA purposes. See O’Brien v. Wilkie, 30 Vet. App. 21 (2018). As such, the claim seeking recognition of S. as the Veteran’s dependent child for VA purposes is precluded by regulation and must therefore be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. Entitlement to recognition of T. 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 step-son, T., 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; however, if a finding is made that a claimant was permanently incapable of self-support as of his or 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 age 18, VA is required to proceed no further. Id. By way of background, the Veteran’s step-son, T., attained the age of 18 in January 2011. The Veteran contends that T. constitutes 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 2015, the Veteran stated that T. went to a public school until 2007, when he was enrolled in an online school. This was done because T. could not handle the interactions with the large group of people in the public school. T. completed his school work on a computer with the help of his mother. The Veteran indicated that T. would never have received his diploma without the constant supervision and support of his mother, and it took him an extra year and a half of school to earn the diploma. T. struggles with social interaction and his mental disorder prevents him from receiving a driver’s license. T. has never been employed due to his difficulties with social interactions. The Veteran also submitted a July 2013 letter from the Defense Finance and Accounting Service reflecting that the DoD recognized T. as an incapacitated child over the age of 21 years. In January 2015, T.’s treating physician stated that he has a severe mood disorder, diagnosed as recurrent major depression of moderate severity. T. is currently unable to work. He is socially isolated and unlikely to significantly improve. T. was first treated in July 2009. In a July 2017 statement, the Veteran’s friend, K.A., stated that he had known T. for 10 years and had witnessed that T. was very depressed, never happy, and did not like being around people. T. isolated himself and had very poor personal hygiene. Despite K.A.’s repeated efforts, he had never seen T. smile. K.A. stated that there was no way T. would be able to take care of himself. In July 2017, the Veteran’s neighbor, S.N., stated that she had known T. for 11 years. T. was always depressed and she had never seen him happy about anything. During events at the Veteran’s home, T. would stay in his room away from everyone. T. never played with other children. He also had very poor hygiene. In July 2017, S.W. stated that he had known T. all of his life. T. had always been withdrawn and refused many invitations to join S.W. and his son in recreational activities. T. always wanted to stay home, was not social, and socially isolated himself. T. does not handle any kind of change well. When T.’s parents got a new house in 2008 and tore down the old house, T. was very angry and hit the new house with his fist. S.W. stated that life in general is a daily struggle for T., including difficulties with hygiene, change, social interaction, and happiness. In July 2017, T.’s mother, H.C., stated that T. was first treated for mental illness in July 2009. T. showed symptoms long before this, but was not treated because of the lack of mental health treatment in their area. T. had always struggled to make friends. He kept his distance from everyone and never wanted to join in any family or school activities. He had been severely mentally ill since childhood and his symptoms had not improved. T. has very poor hygiene. He would go weeks wearing the same clothes and always wore a winter coat, regardless of the weather. Based on the evidence of record, the Board finds T. was rendered incapable of self-support prior to attaining the age of 18. The medical and lay evidence of record establishes that he was a “helpless child” prior to the age of 18. The Board found the January 2015 statement from T.’s treating physician to be highly probative evidence that T. is incapable for self-support due to a psychiatric disorder. In addition, the numerous lay statements from the Veteran, his wife, and others who know T. are highly probative evidence that T.’s psychiatric disorder existed prior to T. attaining the age of 18 and rendered him incapable of self-support. The Board specifically notes that the evidence consistently reflects that T. is unable to interact with others, socially isolated, and has poor hygiene. These symptoms would render him incapable of self-support. Given that T.’s psychiatric disorder existed prior to his becoming 18 and rendered him incapable of self-support, the weight of the evidence supports a finding that he was permanently incapable of self-support prior to the age of 18; therefore, the Board finds that the Veteran’s step-son, T., meets the definition of a helpless child for purposes of VA benefits. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel