Citation Nr: 18151710 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 18-15 987 DATE: November 20, 2018 ORDER Entitlement to recognition of M.D. as the “helpless child” of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18 is denied. FINDING OF FACT 1. The appellant, who is the son of the Veteran, reached the age of 18 in 1996. 2. The Veteran died in 2006. 3. The appellant has not been shown to have been 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, M.D., 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 The appellant is the surviving son of the Veteran, who died in 2006. He is seeking recognition as a “helpless child” of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18. 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 for consideration. Principal 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 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. 38 C.F.R. § 3.356 (2017). The United States Court of Appeals for Veterans Claims (Court) has held that the focus of analysis must be on the individual’s condition at the time of his or her 18th birthday in order to determine whether that individual is entitled to the status of “child.” See Dobson v. Brown, 4 Vet. App. 443, 445 (1993). In other words, for purposes of initially establishing helpless child status, the individual’s condition subsequent to his or her eighteenth 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 eighteenth 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 eighteen, VA is required to proceed no further. Id. Benefits may not be paid to a helpless child who has married. See 38 C.F.R. § 3.950. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The appellant contends that he has been disabled since age 14 on the basis of his eyesight and mental health. He reported he was dependent on the Veteran up until his death, although he stopped living with him in 2000. A Social Security Administration (SSA) letter indicates that the appellant filed for Supplemental Security Income in 1991, his claim was approved in 1992, and he has been receiving benefits since that time. In response to the VA’s query the SSA reported that the agency had no medical records for the appellant. The appellant has not submitted any medical records from prior to his attaining age 18. The author of a hospitalization record from when the appellant was age 21 states that the appellant has been under the doctor’s care “for the last four years and hospitalized on and off, mainly because of his aggressive behavior.” The record notes the appellant has trouble controlling his temper, has been destroying property, and threatening family members. Diagnoses of bipolar affective disorder, depressive type; attention deficit hyperactivity disorder (ADHD); and impulse control disorder are listed. A hospitalization record from when the appellant was age 22 states similarly, noting diagnoses of bipolar disorder, ADHD, recurrent major depression, and parent/child relationship problems. The appellant also submitted mental health treatment records from when he was age 26 in which he is noted to report various dates of a diagnosis of biopolar disorder, including in 1994, age 13, 10 years prior, and five to six years prior. Treatment records also note his report that he was diagnosed with attention deficit hyperactivity disorder at age 12. Records also indicate that he reported that his first psychiatric intervention was between age 14 and 16 after a family altercation and his first psychiatric hospitalization was at age 18 as a senior in high school. Records also indicate he reported he graduated from high school and completed one year of college. The appellant also submitted an eye examination from 2010 listing diagnoses of hyperopia, astigmatism, and macular cyst. The report also notes that the Veteran reported he injured his right eye as a child. The appellant submitted a high school transcript that does not indicate that he was in special education classes and shows mostly passing grades. The Board finds that the records suggest that the appellant likely had mental health problems, even diagnoses, prior to reaching age 18. However, there is no medical evidence suggesting that those mental health conditions rendered the appellant incapable of self-support prior to attaining age 18. The appellant himself has alleged in connection with his VA claim that he has been dependent on the Veteran since he was a child, but the evidence does not support that any such dependency equated to being permanently incapable of self-support, and that such condition onset before the age of 18. The medical records available contain no information at all as to the Veteran’s capability for self-support considering his mental and physical condition. Merely having some disability, even if that disability onset before age 18, is insufficient to meet the VA’s requirements to be found to be a “helpless child” such that a person may be found to be an eligible claimant for benefits. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by VA regulations. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). The claim for recognition of the appellant as a “helpless child” of the Veteran must be denied. JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Christensen