Citation Nr: 18145131 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 14-35 811 DATE: October 30, 2018 ORDER Recognition of the appellant as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years for purposes of receiving VA benefits is granted. FINDINGS OF FACT 1. The appellant was born in January 1970 and turned 18 years of age in January 1988. 2. The appellant was permanently incapable of self-support by reason of a physical condition prior to attaining the age of 18. CONCLUSION OF LAW The criteria for VA benefits on the basis of permanent incapacity for self-support prior to attaining the age of 18 have been met. 38 U.S.C. § 101 (4)(A) (2012); 38 C.F.R. §§ 3.57, 3.356 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1961 to December 1970. He died in July 2006. The appellant is his adult daughter. At the outset, the Board notes that record contains a VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, signed in May 2018, showing that the appellant is represented in this matter by the Kentucky Department of Veterans Affairs. To date, that organization has not been provided the opportunity to submit a VA Form 646, Statement of Accredited Representative in Appealed Case, or any other evidence or argument in support of the appellant’s claim. However, the Board finds that there is no due process deficiency herein, as the benefit sought is being fully granted. The appellant asserts that, having been diagnosed with systemic lupus at age 9, she has been permanently disabled since that age. She contends that, prior to her 18th birthday in January 1988 and since, she has been unable to support herself and obtain gainful employment. The term “child” for purposes of Title 38 of the United States Code is specifically defined. For purposes of determining eligibility as a claimant under Title 38, a child must be unmarried and must be either 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) (2012); 38 C.F.R. §§ 3.57 (a)(1), 3.356 (2017). Rating determinations regarding helpless child status are made solely on the basis of whether the child is permanently incapable of self-support through his or her own efforts by reason of physical or mental defects. The rating criteria applicable to disabled service members are not controlling. 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. The principal factors for consideration under 38 C.F.R. §3.356 are as follows: (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. It has been held that in cases 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 appellant’s condition subsequent to his or her eighteenth birthday is not for consideration. If the individual in question is shown to be capable of self-support at eighteen, VA is required to proceed no further. Id. However, if a finding is made that an individual was permanently incapable of self-support as of his or her eighteenth birthday, then evidence of that person’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 after the age of 18. Id. The record indicates that the appellant was born in January 1970. It follows that she has now reached the age of 18 years. The record also contains evidence that she was diagnosed with systemic lupus in 1979, at age 9, and apparently has never worked. An October 2009 letter from Dr. M.A.S., the appellant’s treating physician, opined that she was totally and permanently disabled and unable to work. An August 2018 letter from the Social Security Administration (SSA) shows that the appellant became eligible for Supplemental Security Income (SSI) as of February 1, 1988, and was paid benefits starting on that date. Based on this evidence, the Board first finds that the appellant was permanently incapable of self-support prior to the age of 18, as evidenced by her immediate eligibility for SSA benefits once she achieved that age. Turning to whether she demonstrated improvement sufficient to render her capable of self-support after age 18, the Board finds Dr. M.A.S.’s letter, indicating that the appellant is currently unable to provide for her own support by her own efforts due to her illness, highly persuasive. In addition to Dr. M.A.S.’s letter, SSA records show that the appellant was paid SSI benefits on a regular basis since February 1988. Clearly there has been no showing of improvement sufficient to render her capable of self-support after she turned 18 years of age in January 1988. Based on the evidence of record, and resolving any doubt in her favor, the Board finds that the appellant was permanently incapable of self-support by reason of physical defect; that this condition was present prior to her eighteenth birthday; and that she remains incapable of self-support. See 38 C.F.R. § 3.356 (a); Dobson, supra. Accordingly, the claim is granted. See 38 U.S.C. § 5107 (b). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel