Citation Nr: 18147939 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 14-20 118A DATE: November 6, 2018 ISSUES 1. Entitlement to recognition of D.L.W., the Veteran’s daughter, as a helpless child for the purposes of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years. 2. Entitlement to accrued benefits. ORDER Entitlement to recognition of D.L.W., the Veteran’s daughter, as a helpless child for the purposes of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years, is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran passed away on February [redacted], 2013. 2. The appellant was born in September 1957 and reached the age of 18 in September 1975. 3. The appellant did not become permanently incapable of self-support by reason of mental or physical defect prior to attaining the age of 18. CONCLUSIONS OF LAW 1. 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). 2. The criteria for entitlement to accrued benefits on the basis of the appellant being a “child” of the Veteran are not met. 38 U.S.C. § 101 (4), 1542, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.57, 3.950 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1944 to November 1945. The Veteran passed away on February [redacted], 2013. The appellant is his surviving daughter. This matter is before the Board of Veterans Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction of the claim is presently at the VA RO in St. Petersburg, Florida. In September 2018, the appellant withdrew her hearing request. Therefore, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704 (d) (2017). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The appellant in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). 1. Entitlement to recognition of D.L.W., the Veteran’s daughter, as a helpless child for the purposes of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years. 2. Entitlement to accrued benefits. By way of background, 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) (2012); 38 C.F.R. § 3.57 (2017). 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 (2017). The United States Court of Appeals for Veterans Claims (Court) has held that, in cases such as this, the focus of analysis must be on the individual’s condition at the time of his or her 18th birthday to determine whether that individual is entitled to the status of “child.” See Dobson v. Brown, 4 Vet. App. 443, 445 (1993). Stated another way, for purposes of initially establishing helpless child status, the individual’s condition subsequent to his or her 18th 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 18, VA is required to proceed no further. Id. In the instant case, the appellant seeks entitlement to Dependency and Indemnity Compensation (DIC) benefits based on dependency status as a helpless child. She also seeks entitlement to accrued benefits as the deceased Veteran’s daughter by way of describing her financial hardship since her father’s passing. In her May 2013 application for DIC benefits, the appellant reported that she had no current income other than benefits that she received from the Social Security Administration (SSA). She also wrote that she had neither tangible nor intangible assets. The September 2013 VA Notification Letter described the reasons for the denial of benefits. In her October 2013 Notice of Disagreement (NOD), the appellant contended that she is entitled to DIC on the basis of being totally disabled since 2000. Here, she noted that she received SSA disability benefits once per month in order to support herself. As the Veteran is deceased, according to the appellant, she is entitled to DIC benefits because she can’t pay her bills herself now that they cannot put their money together to help each other out. She is at risk of losing her home of 26 years. On November 1, 2013, VA sent the appellant an appeals process election letter. The Veteran was subsequently issued a May 2014 Statement of the Case (SOC). The SOC described in great detail the criteria necessary to prevail in her claim. The appellant submitted a June 2014 VA Form 9. It reads as follows, “I disagree with the decision because I am totally disabled and before my father died, he supported me with my bills and food expenses. I am receiving assistance from Social Security but that is not enough to make it from day to day.” As discussed above, the outcome of this issue turns on whether the evidence establishes that the appellant was permanently incapable of self-support before her 18th birthday. See 38 C.F.R. § 3.57 (a)(2)(ii) (2017). The undisputed facts in this case show that the appellant was born in September 1957 and reached the age of 18 on in September 1975. The evidence shows that the appellant was adopted by the Veteran. The weight of the evidence shows that the appellant did not become permanently incapable of self-support by reason of mental or physical defect prior to attaining the age of 18. The Veteran died in February 2013. As the appellant has provided no required evidence, the record, as a whole, fails to support her claim for DIC benefits based on her dependency status as a helpless child. There is no evidence showing that the Veteran’s daughter is 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 and who is a member of the Veteran’s household or was a member of the Veteran’s household at the time of the Veteran’s death, or an illegitimate child; and who is under the age of 18 years; or who, before reaching the age of 18 years, became permanently incapable of self-support; or who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. In other words, there is no evidence of, and the appellant has not specifically alleged, that she became permanently incapable of self support before reaching the age of 18. The Board also observes that the appellant has had several years to develop her claim and cure the critical evidentiary defects in this regard. She has been afforded the opportunity for a Board hearing, and we have sympathetically considered her contentions. Here, although the Board acknowledges the appellant’s financial hardship, and that she is the Veteran’s daughter, she is legally an adult, and is not a “child” for VA purposes. In that regard, although she consistently reports that she is currently unemployed and receiving social security disability since 2000, there is no evidence that she was permanently incapable of self-support before the age of 18. We have considered the appellant’s reports that she became totally disabled prior to her father’s death. The appellant was born on September 1957, was well over 18 years of age at the time that she filed her claim, and is not shown to be permanently incapable of self-support before the age of 18. Therefore, the undisputed facts show that the appellant does not meet eligibility requirements as a child under the governing statutes and regulations. Because the appellant does not qualify as a “child” of the Veteran for VA purposes, the Board finds that the claim of entitlement to DIC must be denied. As the disposition of this claim is based upon the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Turning to accrued benefits, since the appellant does not qualify as a “child” of the Veteran for VA purposes, the Board finds that entitlement to accrued benefits must be denied. Again, as the disposition of this claim is based upon the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis, supra. The appellant has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (Continued on the next page.) In reaching this conclusion, the Board is very sympathetic to the appellant’s financial circumstances and the emotional hardship that she has endured in the loss of her father, the Veteran. Unfortunately, the Board finds that the preponderance of the evidence is against this claim, and as such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel