Citation Nr: 18154535 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 15-35 633 DATE: December 3, 2018 ORDER Recognition of J.J. 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 J.J. 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 J.J. 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 in the Special Philippine Scouts from July 1946 to April 1949. Unfortunately, he died in October 1990. The appellant is the Veteran’s son, J.J. 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 Manila, the Commonwealth of the Philippines. The Board notes that the appellant has a separate pending appeal as to the issue of entitlement to nonservice-connected death pension benefits the application to reopen the previously denied claim of entitlement to service connection for the cause of the Veteran’s death. 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 also notes that J.J.’s sister was listed as the appellant on the March 2015 statement of the case and has been submitting evidence in support of the claim. However, as discussed below, the RO explicitly recognized J.J. as the substituted claimant, J.J. has not appointed a representative for VA purposes, and the record does not reflect that he has been declared incompetent by VA. As such, J.J. is properly recognized as the appellant. Appellant as Substitute-Claimant If a claimant dies on or after October 10, 2008 while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C. § 5121A. The law allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant’s claim. Prior to a decision on the Veteran’s surviving spouse’s October 2014 claim, the RO received confirmation of her February 2015 death. The appellant submitted a February 2015 a request for substitution with regard to the surviving spouse’s pending claims. See 38 U.S.C. § 5121A. In the March 2015 rating decision, the RO allowed for the J.J.’s substitution in the surviving spouse’s case that was on appeal. The appellant was recognized to be acting on behalf of J.J. and was notified of this decision in a letter that same month. Therefore, the Board recognizes that J.J has been properly substituted for the Veteran’s surviving spouse, with the appellant acting on his behalf. As the surviving spouse’s death occurred after October 10, 2008, the J.J.’s claim is not one for accrued benefits, but remains the original claim into which he is substituted in the surviving spouse’s stead. 1. Entitlement to recognition of J.J. 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 he 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 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, J.J., attained the age of 18 in September 1982. The appellant contends that he was 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.J. was rendered incapable of self-support prior to attaining the age of 18 and as such, the evidence of record establishes that he was a “helpless child” prior to the age of 18 due to his disabilities. In a November 2014 Medical Certificate, a physician stated that J.J. had been diagnosed with mental retardation and had the mental age of a 10 year old. In a February 2015 statement, J.J.’s neighbors stated that J.J. was very well known in their place as mentally retarded. J.J. was a very quiet and behaved person, but would get “mad and wild” if someone made a joke calling him insane. The neighbors stated that J.J. depended on his mother and sister for support because no one would trust him and he was unemployed. In February 2015, J.J.’s sister stated that J.J. was in grade one when the family knew about his condition. He did not finish grade one and has never been employed. He was unmarried and had no income. Given that J.J.’s mental retardation 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. Therefore, the Board finds that the Veteran’s son, J.J., meets the definition of a helpless child for purposes of VA benefits. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel