Citation Nr: 18152114 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-00 488A DATE: November 20, 2018 ORDER Entitlement to benefits based on recognition as a surviving child, as defined by regulations of the U.S. Department of Veterans Affairs (VA), is denied. FINDING OF FACT The evidence does not indicate that the appellant was a helpless child prior to her 18th birthday. CONCLUSION OF LAW The criteria for entitlement to VA benefits, based on the appellant being a helpless child, have not been met. 38 U.S.C. § 101 (2012); 38 C.F.R. §§ 3.57, 3.356 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from April 1953 to April 1955. The DD Form 214 of record indicates an additional period of service of one year, one month, and 20 days. The Veteran died in March 2013. The appellant is the Veteran’s daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a VA Regional Office (RO). Death Benefits The appellant asserts entitlement to VA benefits based on her status as a surviving child of the Veteran. Death benefits may be payable to a child of a Veteran. See 38 U.S.C. § 101 (14), (15). The term “child” for VA purposes 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 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 (i) who is under the age of 18 years; or (ii) who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) 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 approved by the Department of Veterans Affairs. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57(a)(1). On or after January 1, 1975, marriage of a child terminated prior to November 1, 1990, shall not bar the furnishing of benefits to or for such child provided that the marriage has been dissolved by a court with basic authority to render divorce decrees unless VA determines that the divorce was secured through fraud by either party or by collusion. 38 C.F.R. § 3.55(b)(2)(ii). A 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. 38 C.F.R. § 3.356(a). 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. 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 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. 38 C.F.R. § 3.356(b)(2). 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. 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 focus must be on the claimant’s condition at the time of her 18th birthday. Dobson v. Brown, 4 Vet. App. 443, 445 (1993). If a finding is made that a claimant was permanently incapable of self-support as of her 18th birthday, 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. Entitlement to recognition of the appellant as a helpless child on permanent incapacity of self-support established prior to the age of eighteen In this case, the appellant cannot be considered a “child” under VA regulations. The appellant was born in September 1969. Her 18th birthday was in September 1987. She is now 49 years old. She contends she has suffered from mental disabilities since childhood, which has left her unable to work and earn a living. Medical records dated in August 2001 indicate that the appellant began receiving treatment for her condition in 1992 and had been under regular treatment for bipolar disorder with mixed features since 1997. This evidence indicates that the appellant then reported that her symptoms occurred abruptly in 1992 and she never had trouble before that. The appellant stated that she began having delusions and hallucinations, but remained well for about four years until the birth of her first child in 1997. Records from the Social Security Administration (SSA) show that between the dates of March 1984 and October 1994, the appellant worked as a food server, cashier, CNA, nursing assistant, waitress, and factory worker. This indicates that the appellant was able to perform the activities of employment of any nature within her physical and mental capacity prior to age 18. See 38 C.F.R. § 3.356 (b)(3). The record indicates that the appellant has been married twice. She divorced her first husband in April 1995 and married her current husband in June 1995. See 38 C.F.R. § 3.55(b)(2). Additionally, under 38 U.S.C. § 3.57, she does not meet the definition of a child for VA purposes as she is not an unmarried person. Further, the fact of her marriage tends to weigh against a finding of permanent incapacity of self-support to the extent it indicates a degree of independence and mental capacity beyond that contemplated by the “helpless child’ definition. The evidence of record indicating permanent incapacity since prior to the appellant’s 18th birthday consists of her own statements and those from her mother. In a statement received in January 2015, her mother indicated that the appellant has had severe mental illness since the age of 15, but could not get help until her late teens. (Continued on the next page)   The Board has considered the evidence in support of the claim. However, the preponderance of the evidence indicates onset of psychiatric disability years after the appellant turned 18. Indeed, the evidence indicates onset in the early 1990s, when the appellant was in her early 20s. Additionally, the appellant did not begin receiving SSA disability benefits until September 1997. This weighs against the claim that she experienced symptoms prior to age 18. Further, the evidence indicating that the appellant worked until her mid 20s undermines any argument that psychiatric disability made her incapable of working to support herself. Thus, the weight of the probative evidence establishes that the appellant is not a “helpless child” for the purpose of VA death benefits – the evidence does not indicate a permanent incapacity for self-support before attaining the age of 18 years. As the preponderance of the evidence is against the claim, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel