Citation Nr: 18158830 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-00 516 DATE: December 18, 2018 ORDER Recognition of L.M. III as a helpless child of the Veteran due to permanent incapacity for self-support prior to attaining the age of 18 years is denied. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished 2. The Veteran’s son, L.M. III, was born in November 2001 and attained 18 years of age in November 2018, and has not been shown to have been permanently incapable of self-support by reason of a mental or physical condition prior to attaining the age of 18 years. CONCLUSION OF LAW The criteria for recognition of L.M. III as the helpless child of the Veteran due to permanent incapacity for self-support prior to attaining the age 18 years are not met. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.356. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 2000 to August 2001, July 2005 to December 2006, and from August 2008 to September 2009. This appeal to the Board of Veterans’ Appeals (Board) arose from an August 2013 rating decision, which, inter alia, denied permanent incapacity for self-support for L.M. III. The Board notes that the Veteran has separate appeal streams for service connection for right and left knee conditions, right and left toe condition, low back condition, adjustment disorder, sinusitis, pityrosporum folliculitis, right wrist condition, right foot condition, hypertension, thyroid condition, tinnitus, bilateral eye injury, right and left leg conditions, chronic fatigue syndrome, irritable colon syndrome, fibromyalgia, and sleep disorders, as well as claims for earlier effective dates for PTSD and migraine headaches. However, these issues will be addressed in a separate Board decision. The Veteran contends that her son, L.M. III, is entitled to recognition as the “helpless child” of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18 on the VA 21-526 Application for Compensation. The Veteran offered no other detail or statements as to the basis of the claim. The definition of the term “child,” as defined for the purposes of establishing dependency status, means 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. In addition, the child must be someone who: (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57(a). Rating determinations regarding incapacity for self-support 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. 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. 38 C.F.R. § 3.356(2). The Board notes that, in a case such as this, the, “focus of analysis must be on the claimant’s condition at the time of his or her 18th birthday.” Dobson v. Brown, 4 Vet. App. 443, 445 (1993). For the purpose of initially establishing “helpless child” status, the child’s condition subsequent to his or her 18th birthday is not relevant unless a finding is made that he or she was permanently incapable of self-support as of his or her 18th birthday. Id. If the claimant is shown to be capable of self-support at the age of 18, VA is required to proceed no further. Id. Here, the Veteran and her attorney have not provided any documentation that the Veteran’s son, L.M. III, was permanently incapable of self-support by reason of mental or physical defect at the time of his 18th birthday in November 2018. The Veteran has not offered any evidence that L.M. III suffered from physical or mental disability of such severity prior to attaining the age of 18 years that he had become incapable of self-support at that time. There is also no indication that he was incapable of performing his daily activities in the home and community equivalent to the activities of employment of a nature within his physical or mental capacity which would provide sufficient income for reasonable support. To assist the Veteran, the Regional Office sent a letter to her in July 2012 notifying her of the evidence required for a determination that L.M. III was permanently and totally incapacitated prior to attaining the age of 18, and no response has been received. In the absence of probative evidence or lay statements explaining how L.M. III is incapable of self-support, the claim cannot be granted. The “duty to assist is not always a one-way street” and the Veteran is obliged to cooperate in the development of the pending claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). Thus, and despite being informed of her duty to provide such information, the Veteran failed to submit the information requested in the July 2012 letter. Here, there is no evidence of record establishing that L.M. III became incapable of self-support prior to 18 years of age. Therefore, a remand would be fruitless in the circumstances of the instant case, where the Veteran has failed to provide the Board with the specific information necessary for further development. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). Therefore, after consideration of all the evidence, and on the basis of the above analysis, the Board finds that the preponderance of the evidence is against recognizing L.M. III as a helpless child of the Veteran within the meaning of the governing legal authority; accordingly, the claim on appeal must be denied. See 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.356. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits of the claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell