Citation Nr: 1807025	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  13-07 368	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to recognition of the appellant as a "helpless child" of the Veteran for purposes of receiving death benefits.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Keninger, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1943 to January 1944. He died in January 1987.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2012 rating decision issued by the Pension Management Center in Milwaukee, Wisconsin. The Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan has current jurisdiction.

The Board remanded this matter in March 2017 for additional development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1. The appellant turned 18 years of age in July 1978.

2. The appellant was not permanently incapable of self-support prior to attaining the age of 18.

CONCLUSION OF LAW

The criteria for dependency eligibility on the basis of permanent incapacity for self-support prior to attaining the age of 18 have not been met. 38 U.S.C. § 101(4)(A) (2012); 38 C.F.R. §§ 3.57, 3.356 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

Neither the appellant nor the representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the appellant fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Additionally, the Board finds there has been substantial compliance with its March 2017 remand directives. The appellant's Social Security Administration (SSA) records were obtained. Additionally, the appellant was provided the opportunity to submit additional evidence to support his claim. The appellant, in a phone call, indicated a child support Ombudsman in Detroit would have information that would prove the appellant was the Veteran's child. An address, phone number, and fax number for the Ombudsman was provided by the appellant. VA has not attempted to obtain these records on the appellant's behalf. However, the Board finds this information, which would potentially support the appellant's claim that he was a child of the Veteran, is no longer relevant, as the Board finds that the appellant was not permanently incapable of self-support prior to attaining the age of 18, as explained below. 

The Board notes that the Veteran is not prejudiced by the Board addressing whether the appellant is a helpless child, as the RO addressed this fact as well. As such, the appellant is not entitled to benefits as a helpless child regardless of whether there is a finding that the appellant is a child of the Veteran.

Based on the foregoing, the Board finds the RO substantially complied with the mandates of the remand, and no further remand is necessary. Stegall, 11 Vet. App. at 268. Therefore, the Board will proceed to review and decide the claim based on the evidence of record.

II. Permanent Incapacity for Self-Support

The appellant was born in July 1960. He turned 18 years of age in July 1978 and reports that he has never been married. He contends that he is entitled to recognition as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to reaching 18 years of age.

The term "child" for purposes of Title 38 of the United States Code is specifically defined. For purposes of determining eligibility as an appellant under Title 38, a child must be unmarried and must be either 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.

Rating determinations regarding helpless child status are 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 rating criteria applicable to disabled service members are not controlling. 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. Id.  

The principal factors for consideration under 38 C.F.R. § 3.356 are:

(1) The fact that an appellant 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 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.

It has been held that in cases such as this, the "focus of analysis must be on the appellant's condition at the time of his or her 18th birthday." Dobson v. Brown, 4 Vet. App. 443, 445 (1993). In other words, for purposes of initially establishing helpless child status, the appellant's condition subsequent to his or her 18th birthday is generally not for consideration. If the individual in question is shown to be capable of self-support at 18, VA is required to proceed no further. Id. However, if a finding is made that an individual was permanently incapable of self-support as of his or her 18th birthday, then evidence of that person's subsequent condition becomes relevant for the second step of the analysis, that is, whether there is improvement sufficient to render the appellant capable of self-support after the age of 18. Id.

The Board acknowledges that the main records in the claims file relevant to the appellant's capacity at the time of his 18th birthday are the appellant's SSA records and some medical records, as well as the appellant's lay statements. The Board finds the appellant was provided an additional opportunity provide information as to his status as disabled in the March 2017 remand, and no additional medical records or evidence were provided by the appellant. Therefore, no additional development is necessary.

The appellant's lay statements indicate that he was shot in the leg while riding a bus at age 14 or 15, although treatment records from 2012 treatment records indicate this injury took place in the 1980s. Additionally, the appellant contends that he has asthma and sleep apnea and is obese; however, it is not reported whether these disabilities were present by the time the appellant's reached his 18th birthday and to what extent the disabilities may have impacted him at that time.

Medical treatment records from February 1994 indicate the appellant had mild hypertension, which was diagnosed in approximately 1988, was moderately obese, and had leg pain related to being shot in approximately 1984, which is consistent with the 2012 treatment records that indicate the appellant's leg injury took place after his 18th birthday.

Medical records from 2012 indicate the appellant is diagnosed with gout, sleep apnea, asthma, and arthritis, but does not indicate when these disabilities were diagnosed. Additional records from Park Medical Centers in 2013 add diagnoses of allergies and an emotional disorder. Again, it is not clear when the appellant was diagnosed with these disabilities, but they were not included on the list from 2012, suggesting they likely were noted some time after the appellant was seen in 2012 and well after his 18th birthday in July 1978.

The appellant filed for SSA disability in November 1993 but was not granted disability benefits until December 1995 as the SSA found the appellant did not meet the agencies definition of disable until 1995. 

The Board finds that given the above evidence, the appellant was not a "helpless child" at age 18 as he was capable of self-support through his or her own efforts by reason of physical or mental defects. First and foremost, even in 1993, approximately 15 years after his 18th birthday, SSA did not find the appellant was disabled. Additionally, the appellant did not genuinely assert any disabilities or physical or mental defects that would make him incapable of self-support prior to his 18th birthday other than a gunshot wound in his left leg at age 15, and though the claims file does not include treatment records from this injury, when it is mentioned in subsequent treatment records, it is noted that this injury took place in the 1980s, not before the appellant's 18th birthday. Accordingly, the appellant's claim is denied.


ORDER

Entitlement to recognition of the appellant as a "helpless child" of the Veteran for purposes of receiving death benefits is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs