Citation Nr: 18151908 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 17-19 721 DATE: November 20, 2018 ORDER Recognition of S.R. 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. FINDING OF FACT S.R. has been shown to have been permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria for recognition of S.R. 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 FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from June 1968 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran had also appealed the RO’s October 2015 denial of the claim of entitlement to special monthly pension (SMP). However, in the September 2017 rating decision, the RO granted SMP based on the Veteran’s need for aid and attendance, effective April 11, 2017. As this was a full grant of the benefit sought, it is not part of the present appeal. 1. Entitlement to recognition of S.R. 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 daughter, S.R., was rendered incapable of self-support prior to attaining the age of 18. As an initial matter, veterans who have disabilities rated as 30 percent disabling and higher may be entitled to additional compensation for dependents. 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). Here, the Veteran is in receipt of SMP based on the Veteran’s need for aid and attendance, based, in pertinent part, on a 100 percent rating for cerebrovascular accident. Thus, the threshold criteria for additional compensation for dependents has been met. 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 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. If a finding is made that a claimant was permanently incapable of self-support as of his or her 18th birthday, however, 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 daughter, S.R., attained the age of 18 in December 1994. The Veteran contends that S.R. constitutes a helpless child because she became incapable of self-support prior to the age of 18 due to his disabilities. Based on the evidence record, the Board finds S.R. was rendered incapable of self-support prior to attaining the age of 18. The evidence of record establishes that she was a “helpless child” prior to the age of 18 due to her disabilities. A September 2010 letter indicated that S.R. was registered in 1985 with the school system’s special education program due to her autism. She received special autism services in the classroom. The March 2016 psychological evaluation report indicated that S.R. was diagnosed with autism when she was four years old. She does not work and depends on her parents in her instrumental activities of daily living. During the evaluation, S.R. could follow simple instructions, although some confusion was observed with more complex instructions. Her attention was poor and it was difficult for her to maintain eye contact. Sometimes it was difficult for her to respond to the verbal test, and sometimes she just echoed what she heard from the psychologist. S.R. behaved as a pre-adolescent. She could perform tasks that required imitation, but she needed guidance and structure. Her memory was good, but she needed to be reinforced by her mother. S.R.’s family reported that she bites herself when she is angry. The psychologist opined that S.R.’s maturity level was equivalent to that of an 11-year-old. She had difficulty performing activities outside of her usual routine. She had difficulty using verbal and nonverbal communication to initiate, engage in, and maintain social contact. She requires assistance because she does not have the ability to perform self-help skills and household chores. She also had significant cognitive and emotional deficits. Given that S.R.’s autism clearly existed prior to her becoming 18 and rendered her unable to sustain employment, the evidence supports a finding that she was permanently incapable of self-support prior to the age of 18. Therefore, the Board finds that the Veteran’s daughter, S.R., meets the definition of a helpless child for purposes of VA benefits. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel