Citation Nr: 18151511 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 16-48 722 DATE: November 19, 2018 ORDER Entitlement to recognition as a helpless child of a Veteran on the basis of permanent incapacity for self-support prior to age 18 is denied. FINDINGS OF FACT 1. The record evidence shows that the appellant was born in November 1955 and reached the age of 18 in November 1973. 2. The record evidence shows that the appellant suffers from knee pain, cervical and lumbar disc displacement, cervical radiculopathy, spinal stenosis, lumbosacral neuritis, chronic obstructive pulmonary disease, hallux valgus, posttraumatic stress disorder (PTSD), and dermatophytosis. 3. The record evidence does not show that the Appellant was a member of the Veteran’s household and permanently incapable of self-support when he attained the age of 18. CONCLUSION OF LAW The criteria for entitlement to recognition as a helpless child of a Veteran on the basis of permanent incapacity for self-support prior to age 18 have not been met. 38 U.S.C. § 101 (4)(A) (2012); 38 C.F.R. §§ 3.57, 3.210, 3.356 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1943 to May 1945. He died in July 1984. The Appellant is his biological son. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 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 Veteran or obtained on his 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). Entitlement to recognition as a helpless child of a Veteran on the basis of permanent incapacity for self-support prior to age 18 is denied. For purposes of entitlement to VA benefits, the term “child” includes a person who is unmarried and who, before attaining the age of 18 years, became permanently incapable of self- support. See 38 U.S.C. § 101 (4); 38 C.F.R. § 3.57 (a). A child of a Veteran may be considered a “child” after age 18 for purposes of benefits under Title 38, United States Code, if found by a rating determination to have become, prior to age 18, permanently incapable of self- support. See 38 U.S.C. § 101 (4). In order to be eligible for VA benefits under 38 U.S.C. § 101, the “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. The fact that a child is earning his or her own support is prima facie evidence that he or she is not incapable of self-support, and 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. 38 C.F.R. § 3.356 (b)(1). A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of eighteen 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. 38 C.F.R. § 3.356 (b)(2). 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. 38 C.F.R. § 3.356 (b)(3). 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 (b)(4). The Court has held that in cases such as this, the “focus of analysis must be on the [claimed helpless child’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 claimed helpless child’s condition subsequent to his or her eighteenth birthday is not for consideration. If a finding is made that a claimed helpless child was permanently incapable of self-support as of his or her eighteenth birthday, however, then evidence of the claimed helpless child’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 eighteen, VA is required to proceed no further. Id. The Board finds that the preponderance of the evidence is against granting the appellant’s claim of entitlement to recognition as a helpless child of a Veteran on the basis of permanent incapacity for self-support prior to age 18. The appellant contends that, he is applying on the basis that his father was a 100 percent disabled Veteran with the loss of both legs below the knees, and that he is applying because he is disabled and unable to work. See November 2013 correspondence. The evidence of record does not support a finding that he was permanently incapacitated for self-support prior to age 18. The appellant’s birth certificate shows he was born in November 1955; accordingly, he turned 18 in November 1973. The appellant, however, has only submitted medical evidence of disability starting in 2015, well after he turned 18 years of age. The appellant contends that he is disabled and homebound. See October 2015. The appellant’s mother, also the Veteran’s widow, also asserts that her son, the appellant, is the son of a disabled Veteran, and that he himself is seriously disabled with a severely injured back. See January 2016 and February 2016 lay statements. The Board acknowledges the appellant’s assertions of being disabled and housebound, the Board acknowledges the appellant’s current diagnoses and treatment, and the Board acknowledges that the appellant is the son of a disabled Veteran. Despite the appellant’s current disabilities and condition, the fact remains that the appellant was over age 18 when he was treated for his disabilities and became permanently incapable of self-support. As noted above, the appellant has provided no relevant information regarding his alleged permanent incapacity for self-support prior to age 18. See Wood, 1 Vet. App. at 193. The information submitted in support of his helpless child claim pertains instead to his current disabilities and condition, and pertain to the treatment he received in 2015- all of which occurred when he already was over age 18. Moreover, evidence of record includes an application for education benefits assistance for the appellant in July 1973. Simply put, the evidence of record does not show that the appellant was permanently incapable of self-support prior to turning 18. The Board recognizes that the question of “permanent incapacity” is a determination predicated on medical and/or mental health findings. In this regard, the Board is aware of the appellant’s contentions as to his claimed incapacity although these contentions relate to his alleged incapacity after he turned 18 and do not relate to his alleged incapacity prior to his turning 18. Although the appellant is competent to describe his symptoms and activities following, as a lay person, he is not competent to render a medical opinion in terms of either the degree of disability or the date at which such disability became so severe as to result in permanent incapacity. The Board notes that it is bound by the laws and regulations permitting a determination of permanent incapacity for self-support for persons who have not yet attained the age of 18 years. 38 U.S.C. § 101 (4)(A) (2012); 38 C.F.R. §§ 3.57, 3.210, 3.356 (2018). The Board also notes that it is without authority to grant benefits on the basis of equity. See also 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416 (1994). Courts have held that “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). There simply is no provision of law under which the Board may grant the relief sought by the appellant in this appeal (i.e., by finding that he is entitled to recognition as a “helpless child” of the deceased Veteran although he was over age 18 years when he allegedly became permanently incapable of self-support). (Continued on the next page)   As the preponderance of the evidence is against the appellant’s claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that “the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant”); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making this decision, the Board is compelled to express that we are grateful to the deceased Veteran for his honorable service and regrets that a more favorable outcome could not be reached on the appellant’s claim. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel