Citation Nr: 18152899 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 15-27 858 DATE: November 27, 2018 ORDER Recognition of L.B., Jr., 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 L.B., Jr., 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 L.B., Jr., 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 May 1981 to August 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran and his wife testified at a June 2018 Board Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The Veteran has another appeal before the Board. Because that appeal involves an issue dependent on different law and facts, it is the subject of a separate decision. See BVA Memorandum No. 01-18-04; VA Purplebook 01-18-v1.0.0. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to recognition of L.B., Jr. 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 son, L.B., Jr., 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, L.B., Jr., attained the age of 18 in November 2007. See June 2018 letter from Dr. H.G. The Veteran contends that L.B., Jr. constitutes a helpless child because he became incapable of self-support prior to the age of 18 due to his disabilities. Based on the evidence record, the Board finds that L.B., Jr. was rendered incapable of self-support prior to attaining the age of 18. The evidence of record establishes that he was a “helpless child” prior to the age of 18 due to his disabilities. A May 2010 treatment record indicated that L.B., Jr. had a four-year history of tiring easily. A January 2014 treatment record indicated that L.B., Jr. had graduated with a degree in graphic design. A July 2014 treatment record indicated that L.B., Jr. was living at home, not working, and on disability. During the June 2018 Board hearing, the Veteran testified that L.B., Jr. was in the process of being listed for a heart and lung transplant. In June 2018, L.B., Jr.’s treating physician, Dr. H.G., stated that L.B., Jr. was diagnosed with pulmonary hypertension when he was 12 years old and has been incapable of self-support since that time. Dr. H.G. stated that pulmonary hypertension is an illness that has no cure and is not improving. Given that L.B., Jr.’s pulmonary hypertension clearly existed prior to his becoming 18 and rendered him unable to sustain employment, the evidence supports a finding that he was permanently incapable of self-support prior to the age of 18. Therefore, even considering his college degree, the Board finds that the Veteran’s son, L.B., Jr., meets the definition of a helpless child for purposes of VA benefits. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel