Citation Nr: 18152003 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 13-21 905 DATE: November 20, 2018 ORDER Recognition of T.N. 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 T.N. 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 T.N. 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 November 1984 to December 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Board, in pertinent part, remanded this appeal for additional development. 1. Entitlement to recognition of T.N. 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 her son, T.N., was rendered incapable of self-support prior to attaining the age of 18. 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 principal factors for consideration are: (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. 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 son, T.N., attained the age of 18 in February 2009. See January 2008 VA Form 21-686c. The Veteran contends that T.N. constitutes a helpless child because he became incapable of self-support prior to the age of 18 due to his disabilities. A December 2003 school “Case Study Committee Eligibility Report” indicated that T.N. had diagnoses of attention deficit disorder (ADD), amblyopia (reduced visual acuity), and alternating exotropia (outward turning eye). T.N. had sufficient vision to access print materials, but had to use large print materials. Accommodations were made for him in school, including sitting at the front of the classroom, a desk copy of information presented on the board or overhead projector, freedom to move freely to better view visual materials, a computer screen magnifier, and “Talking Typer.” He was assigned a paraprofessional to help him in classes. His projects were modified. T.N. exhibited difficulty remembering assignments and with comprehension. He was frequently distracted and off-task, and had poor organizational skills. A February 2009 individual education plan (IEP) indicated that T.B. had difficulty completing multi-step math problems, but could complete basic problems. He was able to read most regular size-print, but may need occasional enlargement. He used magnifiers and required preferential seating and freedom to move in class to better see things. An April 2010 Social Security Administration (SSA) evaluation indicated that T.N. reported attending college, but was failing because of reading difficulties. He stated that he could not see clearly enough to do any types of tasks. The Veteran told SSA that T.N. did not understand how to calculate his purchases, had a short attention span, and did not handle stress well. In October 2016, the Veteran stated that T.N. was blind due to complications from his premature birth. T.N. received supplemental security income (SSI) as a child and again beginning in 2009, due to his blindness. While an April 2011 letter from SSA indicates that T.N. worked from July 2010, to February 2011, a March 2011 SSA hearing memorandum indicated that T.N. had only had accommodated work through the Divisions of Services for the Blind and the Lions Club. The SSA hearing memorandum further indicated that T.N. could not drive, had difficulty with navigating public transit or on foot, and could not see to count money or make change. Visual impairment, a learning disability, and poor coping and social skills were noted. Given that T.N.’s visual impairment and learning disability existed prior to his becoming 18 and rendered him unable to sustain employment, the weight of the evidence supports a finding that he was permanently incapable of self-support prior to the age of 18. To the extent that T.N. has been employed, such employment was afforded solely upon sympathetic or charitable considerations involved no actual or substantial rendition of services. Therefore, the Board finds that the Veteran’s son, T.N., meets the definition of a helpless child for purposes of VA benefits. LAURA E. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel