Citation Nr: 18158298 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-48 916 DATE: December 14, 2018 ORDER Recognition of the Veteran’s son as a helpless child on the basis of permanent incapacity for self-support prior to attaining age 18 is granted. FINDINGS OF FACT 1. The Veteran’s son was born in January 1991 and attained the age of 18 in January 2009. 2. Resolving any doubt in favor of the Veteran’s son, the competent evidence of record demonstrates that Veteran’s son became permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria for entitlement to VA benefits for the Veteran’s son as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18 have been met. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.356. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran testified before the undersigned Veterans Law Judge in a November 2018 Travel Board hearing. The Veteran asserts that his son was permanently incapable of self-support prior to attaining the age of 18 years, and that his son should therefore be recognized as a helpless child for VA purposes. For helpless child status, it must be shown that the child of the Veteran became permanently incapable of self-support because of mental or physical defect at the date of attaining the age of 18 years. See 38 C.F.R. § 3.356. The term “child” includes an unmarried person, who before reaching the age of 18 years, became permanently incapable of self-support. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57. Under 38 C.F.R. § 3.356(a), 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. The focus of analysis is on the individual’s condition at the time of his/her 18th birthday. It is that condition which determines whether entitlement to the status of “helpless child” should be granted. See Dobson v. Brown, 4 Vet. App. 443 (1993). Rating determinations will be made solely on the basis of whether the child is permanently incapable of self-support through his or her own efforts by reason of physical or mental defects. Id. The question of permanent incapacity for self-support is one of fact for determination by the rating agency on competent evidence of record in the individual case. Rating criteria applicable to disabled veterans are not controlling. Id. Under 38 C.F.R. § 3.356(b), principal factors for consideration are as follows: (1) Whether the claimant is earning his or her own support; if so, this is prima facie evidence that he or she is not incapable of self-support. Id. 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. Id. Employment which was only casual, intermittent, tryout, unsuccessful, or terminated after a short period because 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. Id. 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 it 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. Id. 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 Veteran alleges that his adult son is a helpless child for VA purposes on the basis that by the age of 18 he was permanently incapable of self-support due to his mental disabilities. The Act of Adoption decree shows that the Veteran, the step-grandfather, legally adopted his son in 2016. The Veteran’s son has been given all the rights of a legitimate child of the Veteran. See Adoption Decree submitted July 2016. A September 1995 psychological evaluation indicates that the Veteran’s son underwent psychological testing when he was 4 years old. He was living with the Veteran and the Veteran’s wife (the paternal grandmother) at the time of the evaluation. The diagnostic impression was stated as: physical abuse of child associated with emotional abuse, adjustment disorder with disturbance of emotions and internalization of stress with psychosomatic tendencies, and parent-child problem. Social Security Administration (SSA) records show that the disability began in June 2010. Anxiety disorder was listed as the primary diagnosis and affective disorder as the secondary diagnosis—both considered severe. The inability to function or work as of November 2006 was reported. The Veteran previously filed on behalf of his son in 2009, but was denied because there was evidence that the Veteran’s son worked from April 2006 to November 2006 as a stocker at age 16. This went against the report that he had not left his room in 4 years other than to eat. An August 2010 SSA determination, found the Veteran’s son to be disabled as of June 2, 2010. A private provider authored a letter dated October 2015. The doctor stated that he first saw and treated the Veteran’s son in October 2014, performing a clinical evaluation. He was brought in for treatment subsequent to a motor vehicle accident that occurred in October 2013. He diagnosed him with posttraumatic stress disorder (PTSD), with depressive disorder and anxiety disorder secondary to PTSD. He stated that he has seen and treated the Veteran’s son eight times since the initial evaluation. He concluded that his psychiatric disorder was more than likely due to the vehicle accident, and or the vehicle accident aggravated his pre-existing psychiatric disorder. Prognosis was stated as fair to poor. The provider concluded that to achieve remission intensive treatment would be required, consisting of psychotherapy and pharmacotherapy. In a July 2016 letter, the Veteran reported that his son has been living with him since February 2000 and has been found to be mentally disabled by the Social Security Administration. In another letter, also submitted July 2016, the Veteran details his son’s disability. He states that his son never worked and that he has an 8th grade education. He is currently in treatment for his psychiatric disorders and has been severely disabled since he was 10 years old. He is unable to properly take care of himself and is on social security disability. He remains shut away in his room, only coming out to attend doctor’s appointments, or for meals that are prepared for him. The Veteran continued by detailing his son’s family and medical history. His son was severely abused by his biological father and his son’s biological mother was a drug user, so he may have been born addicted to cocaine. In a letter submitted January 2018, the Veteran provided even more detail, stating that his son was victimized by employees of a church. He stated that he was more than likely raped and mentally abused as part of satanic rituals at the church. He reported that his son has been in treatment for his psychiatric disorders since the age of 5 and to this day he still exhibits symptoms such as isolation. A November 2018 diagnosis letter was authored by the current private provider for the Veteran’s son. The private provider confirmed his psychiatric diagnoses and that the Veteran’s son was still suffering from symptoms such as isolating himself in his bedroom, only coming out to eat. He does not leave the house. She also stated that she first treated him in 2006, at which time she diagnosed him with major depressive disorder and social phobia. She also confirmed that his physical and emotional abuse began at age 2. Due to his social anxiety and depression he was homeschooled in the 8th grade. After a few months of being home schooled he started isolating himself in his room. He did not complete the 8th grade. She concluded that the Veteran’s son is unable to work and remains completely dependent on the Veteran. After applying the pertinent law and regulations to the facts of the case, the Board finds that the evidence supports the claim to establish the Veteran’s son as a helpless child. An explanation of this determination follows. The February 2016 adoption decree confirms that the Veteran legally adopted his son. The Veteran’s son was born on January [redacted], 1961. There is no indication that he has ever been married. The question before the Board is whether the Veteran’s son became permanently incapable of self-support prior to reaching 18 years of age. Resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s son was permanently incapable of supporting himself prior to turning 18. It is uncontested that the Veteran’s son was subject to horrific abuse from a very young age. As a result, the Veteran’s son suffered and exhibited symptoms of severe psychiatric disorders as early as 4 years old. The Veteran has consistently described how his son would isolate himself, in essence living in solitary confinement in his bedroom. The Veteran provided detailed, emotionally raw and honest testimony about how his son is incapable of taking care of himself in any meaningful way, let alone of supporting himself. As stated above, SSA determined that the Veteran’s son was disabled as of June 2, 2010, because of his psychiatric disorders. At the time he was found disabled he was 19 years of age. The Board is not going to split hairs over a difference of 16 months. In addition, notwithstanding the SSA determination, the totality of the evidence shows that the Veteran’s son was incapable of supporting himself prior to reaching 18 years of age. The private evaluations of record literally state that the Veteran’s son has been suffering from severe psychiatric disorders several years prior to reaching his 18th birthday. Moreover, the evidence shows that he exhibited severe symptoms of a psychiatric disorder and was diagnosed with mental disabilities early in his childhood. His long-time provider stated that his psychiatric disorder renders him unable to work, lacking the capacity for self-care. In addition, the long-term provider confirmed his ongoing dependency on the Veteran. The Veteran provided detailed testimony describing how he cares for his son, how his son is incapable of taking care of himself, and how his son is not employed or able to work. Further, there is no evidence that the Veteran’s son has ever been gainfully employed, even though he is presently 27 years of age. As stated above, SSA mentioned evidence that showed that the Veteran’s son was employed as a stocker for 6 months when he was 16 years old. This is not considered gainful employment, and this alone is not enough to show that the Veteran’s son is capable now, or was previously capable of self-support. Although the facts noted above span the period both before and after the Veteran’s son’s 18th birthday, the emphasis in determining whether he was permanently incapable of self-support is on the period before January 2009 when he reached 18 years of age. The Board finds the Veteran’s testimony, his statements of record, and the evaluations and letters by the private providers credible and highly probative. Both before and after January 2009, the Veteran has been the caretaker for his son. He supported him financially and continues to do so, as he has not been shown to have maintained any type of gainful employment, or to demonstrate a capability for doing so. The probative evidence of record shows that the Veteran’s son is permanently incapable of self-support, and was so prior to his 18th birthday. Accordingly, the criteria for recognizing the Veteran’s son as a “helpless child” of the Veteran have been met. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel