Citation Nr: 18152949 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 15-34 771 DATE: November 27, 2018 ORDER Recognition of J.C., 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 The evidence is at least in equipoise as to whether J.C., Jr. was permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria for recognition of J.C., Jr. as a “helpless child” of the Veteran have been met. 38 U.S.C. §§ 101(4)(A), 5107 (2012); 38 C.F.R. §§ 3.102, 3.356 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from September 1972 to April 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran has another appeal before the Board. Because that appeal involves issues dependent on different law and facts, it will be the subject of a separate decision. 1. Entitlement to recognition of J.C., 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, J.C., 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. By way of background, the Veteran’s son, J.C., Jr., attained the age of 18 in August 2013. The Veteran contends that J.C., 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 J.C., 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 July 2009 support profile indicated that J.C., Jr. struggled with personal hygiene and often needed prompting or reminding to take care of his needs. He was no longer in the church choir due to boundary challenges. A November 2011 Individualized Education Plan (IEP) indicated that J.C., Jr. had been identified as having an intellectual disability (mental retardation). He was functioning several grade levels below his peers, was reading at or below a second grade level, had difficulty performing basic math operations, required consistent prompting to complete assignments and remain on task, could not complete work independently, and had difficulty copying notes form the board and following oral directions. He was very social and enjoyed visiting with his peers. An October 2012 assessment indicated that J.C., Jr. had been participating in a community work experience classroom at a university (an unpaid internship) where he displayed stability and consistency in his acquired skills and was able to successfully complete his assigned tasks. He had displayed a successful transition to a work setting. A February 2017 Individual Service Plan (ISP) indicated that J.C., Jr. was working full-time and rode the bus to and from work. He was working with a “referring Agency for Retention and Counselor at Counselor at Vocational Rehabilitation” for employment. He needed help staying on task and focused. When upset, he would shut down and withdraw from his surroundings. He was without adult supervision about 50 percent of the time. He needed to be monitored and needed support with cooking, cleaning, and getting out in and out in the community. He lived with his parents and received income from his job, but his sister managed his funds. One of his goals to accomplish over the next year was to be gainfully employed so that he could move forward with a plan for independent living. The Board recognizes J.C., Jr.’s employment. However, this job appears to have been obtained through a job-placement service for the disabled and to be insufficient for J.C., Jr. to support himself, as shown by the February 2017 ISP indicating that he still lived with his parents and had a goal of being gainfully employed so that he could live independently. As provided in 38 C.F.R. § 3.356, employment afforded solely upon sympathetic or charitable considerations and which involved no actual or substantial rendition of services should not be considered as rebutting permanent incapability of self-support otherwise established. Thus, even considering J.C., Jr.’s employment, he was still unable to live independently or handle his own finances. The board concludes that J.C., Jr.’s employment was afforded solely upon sympathetic or charitable considerations and involved no actual or substantial rendition of services, and is insufficient to rebut the evidence of his permanent incapability of self-support otherwise shown in the record. In sum, the Board finds that the evidence is at least in equipoise as to whether J.C., Jr.’s disabilities existed prior to his becoming 18 and rendered him unable to care for himself or sustain gainful employment. Therefore, the benefit-of-the-doubt rule applies, and recognition of J.C., Jr. as a “helpless child” on the basis of permanent incapacity for self-support prior to attaining age 18 is granted. See 38 C.F.R. § 3.102 LAURA E. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel