Citation Nr: 18153401 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 09-00 182A DATE: November 27, 2018 ORDER Recognition of K.B. 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 K.B. was permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria for recognition of K.B. 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 served on active duty from March 1973 to April 1975. Unfortunately, he died in August 2000. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at an October 2015 Board videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In February 2016, the Board remanded the appeal for additional development. 1. Entitlement to recognition of K.B. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18. The appellant contends that the Veteran’s son, K.B., 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, K.B., attained the age of 18 in November 2001. The appellant contends that K.B. 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 K.B. 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. K.B. received inpatient psychiatric treatment in April 1999 and September 2001 for paranoid delusions and auditory and visual hallucinations, reflecting significant impairment prior to his attaining the age of 18. He appears to have had significant academic difficulties, as demonstrated by the fact that he failed two grades and earned very poor grades. See April 1999 and September 2001 treatment records. Prior to attaining the age of 18, K.B. was diagnosed with schizophrenia, paranoid type, and with significant impairment due to psychotic symptoms. See September 2001 treatment record. During the October 2015 Board hearing, the appellant testified that K.B. had worked in a kitchen, but that such work was intermittent and occurred while he was still in school. She also testified that his employers provided special accommodations because K.B. passed out at work due to seizures. Hearing Transcript at 7-8. The appellant testified that K.B. was in special grade throughout his school years and did not earn a diploma. Instead, he received a certificate reflecting that he attended school for 12 years. Hearing Transcript at 8. The Board recognizes K.B.’s history of employment. A December 2002 letter indicated that K.B. worked 20-25 hours a week at Kentucky Fried Chicken. In addition, the appellant indicated that K.B. might have been working at the time of the October 2015 Board hearing, but that he would not be able to work much longer due to his disabilities. Hearing Transcript at 11. However, his employment appears to have been limited in duration and required significant accommodations. As such, this history of employment is not indicative of a capacity for self-support. The Board concludes that K.B.’s employment was only casual and tryout and is insufficient to rebut the evidence of his permanent incapability of self-support otherwise shown in the record. In sum, while K.B.’s schizophrenia clearly existed prior to his becoming 18, the Board finds that the evidence is at least in equipoise as to whether the schizophrenia rendered him permanently incapable of self-support before the age of 18. Therefore, the benefit-of-the-doubt rule applies, and recognition of K.B. 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. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel