Citation Nr: 18158743 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 15-17 574 DATE: December 18, 2018 ORDER A finding of permanent incapacity for self-support (helpless child) for the appellant is denied. FINDING OF FACT 1. The appellant has a diagnosis of Crohn’s disease, which was initially diagnosed at the age of 15. 2. The appellant worked full time until the age of 34. 3. The appellant did not become incapable of self-support prior to reaching the age of 18. CONCLUSION OF LAW The criteria for entitlement to a finding of permanent incapacity for self-support prior to age 18 have not been met. 38 U.S.C.A §§ 101, 5107; 38 C.F.R. §§ 3.57; 3.102, 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1944 to April 1946. The Veteran died in February 2011. The appellant is the Veteran’s adult son. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. 1. Entitlement to a finding of permanent incapacity for self-support (helpless child) for the appellant The appellant seeks a finding of permanent incapacity for self-support prior to age 18 for purposes of entitlement to VA benefits. Under VA law, a “child” is defined as an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran’s household at the time of the Veteran’s death, or an illegitimate child; and (i) who is under the age of 18 years; or (ii) who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) who, after reaching the age of 18 years or until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs. 38 U.S.C.A § 101(4)(A); 38 C.F.R. § 3.57(a). The question of permanent incapacity for self-support is one of fact based upon a review of competent evidence of record in the individual case. 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. 38 C.F.R. § 3.356(b)(1). After careful review of the evidence of record, the Board finds that the claim should be denied. The appellant was born on September [redacted], 1965, therefore, the evidence of record must show permanent incapacity for self-support prior to September [redacted], 1983. For his part, the appellant has argued that he was diagnosed with Crohn’s disease prior to age 18, which has resulted in other medical issues such as stunted growth and pain, as well as recent diagnoses of atrial fibrillation, high blood pressure, and kidney stones which have all been caused by his treatment for Crohn’s disease. In support of his claim, the appellant has submitted a statement from his treating physician, dated July 24, 2012, which states he has been his patient for over 20 years and that he was diagnosed with Crohn’s disease at the age of 15. The private physician states that the appellant continued to have problems with his Crohn’s disease and requires constant medication to treat his condition. The physician asserts that his Crohn’s disease and associated symptoms have a disabling effect on the appellant and limits what he can do. He continues to require medication for his condition. Also in support of his claim, VA has obtained records from the Social Security Administration (SSA) which include a fully favorable finding of disability with an onset date of November 18, 1999, and with an effective date of July 5, 2000 (the date of his claim for SSA benefits). That decision found that his Crohn’s disease worsened to a level such that it prevented him from obtaining a position within his capabilities at approximately age 34 (1999). Also with his SSA determination is a work history disclosure filled out and signed by the appellant in August 2000 which indicates that he worked in a restaurant from 1984 to 1986; as an office worker (data input) from 1989 to 1991; and as a lighting consultant (sales) from 1991 to 1999. Particularly, with his final position he disclosed that he was capable of walking for up to 8 hours, lifting boxes, loading vehicles, directly interacting with customers and entering computer data. Other evidence in the record indicate that the appellant served as durable and medical power of attorney for his adult brother (who was in receipt of a finding of helpless child) up until the time of his death in September 2017. After careful consideration, the Board finds that the available evidence does not support a finding that the appellant was incapable of self-support prior to reaching age 18. In this matter, the evidence shows that the appellant was capable of working and supporting himself through at least age 34, when his Crohn’s disease worsened to such a state that it interfered with his ability to maintain gainful employment. His employment up until 1999 appears to be full-time and held at lengths of up to 8 years without interruption. His employment, as documented as early as August 2000 was not casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability. Finally, to the extent that his treating physician has stated he has suffered from Crohn’s disease since the age of 15, that opinion does not support a finding that it has prevented him from supporting himself prior to age 18. Rather, it merely documents a diagnosis from that time and is less than persuasive in support of the appellant’s claim. Therefore, the evidence does not support a finding that the appellant met the criteria of a “helpless child” prior to reaching the age of majority, as required for the VA benefits he seeks. In fact, it shows that he was capable of supporting himself through 1999, 16 years after his 18th birthday. The Board is not certainly unsympathetic to the appellant’s claim. However, a finding of permanent incapacity for self-support is a fact-based question which relies upon review of competent evidence of record in the individual case. In this case, he does have a disability, and that disability does interfere with his ability to support himself, but there is no evidence that his disability prevented him from supporting himself prior to age 18, which is required for a finding of helpless child. Accordingly, a finding of permanent incapacity for self-support is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel