Citation Nr: 1807866 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-20 402 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to recognition of appellant as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from February 1951 to February 1953. He died in October 1985. The appellant is the Veteran's daughter. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2017 rating decision that found that permanent incapacity for self-support has been established for the appellant. (The Board notes that the rating decision was issued by the Pension Management Center in St. Paul, Minnesota. Jurisdiction of the appeal, however, remains with the RO in Waco, Texas.) The appellant filed a notice of disagreement (NOD) in January 2013. A statement of the case (SOC) was issued in April 2014 and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2014. In the May 2014 VA Form 9, and May 2015 statement, the Veteran requested a Board hearing before a Veterans Law Judge, sitting at the RO. However, in June 2014, the hearing request was withdrawn. In addition to the paper claims file, the Veteran has paperless, electronic files in the Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. All records have been reviewed. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The appellant was born in June 1957 and attained the age of 18 years in June 1975. 3. The appellant 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 entitlement to recognition as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age 18 years are not met. 38 U.S.C. § 101(4)(A) (2012); 38 C.F.R. § 3.356 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). After a complete or substantially complete application for benefits is filed, the notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112; see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A September 2012 pre-adjudication letter provided pertinent notice to the appellant in connection with her claim for benefits. That letter indicated what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. It also informed the Veteran how VA determines the assignment of disability ratings and effective dates. Notably, neither the appellant nor her representative has alleged or demonstrated any prejudice with regard to the content or timing of any notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). For these reasons, VA has satisfied its duty to notify. The record also reflects that, consistent with applicable duty-to-assist provisions, VA has made reasonable efforts to develop the Veteran's claim decided herein, to include obtaining or assisting in obtaining all relevant records and other evidence pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of lay statements from the appellant and private treatment records. Attempts were made to obtain the appellant's records from the Social Security Administration (SSA); the RO was informed, however, that the appellant's SSA records had been destroyed. In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. As such, there is no prejudice to the appellant in the Board proceeding to a decision on this claim, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The appellant contends that she is entitled to VA benefits based on being permanently incapable of self-support by reason of a mental or physical condition prior to attaining the age of 18 years. The appellant was born in June 1957 and turned 18 in June 1975. The appellant contends that she has a permanent incapacity in the form of a variety of physical and mental disabilities. Specifically, she asserts that she has suffered from panic and anxiety since she was a child and that she has severe allergies and joint problems. At issue in this case is whether the appellant can be recognized as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years for purposes of obtaining VA benefits. To that end, a "child" is defined in relevant part, as a legitimate child who is unmarried and "who, before attaining the age of eighteen years, became permanently incapable of self support." 38 U.S.C. § 101(4)(A)(ii) (2012); 38 C.F.R. §§ 3.57(a)(1)(ii), 3.356 (2017). The standard is that the evidence must show that the child does not have the capacity for self-support. See Bledsoe v. Derwinski, 1 Vet. App. 32 (1990). An adjudicatory body's focus of analysis in such cases must be on the claimant's condition at the time of his or her eighteenth birthday. Dobson v. Brown, 4 Vet. App. 443, 445 (1993). Initially, VA must determine whether the evidence shows the child to have been incapable of self-support as of his or her 18th birthday. Id. If so, the second part of the two-part test requires consideration of evidence as to the current condition of the child. Id. Under 38 C.F.R. § 3.356(b), rating determinations will be made solely on the basis of whether the child is permanently incapable of self-support through her own efforts by reason of physical or mental defects. The question of permanent incapacity for self-support is one of fact for the rating agency to determine based on competent evidence of record in each individual case. Rating criteria applicable to disabled veterans are not considered controlling. Several factors are for consideration: 1) Evidence that a claimant is earning her own support is prima facie evidence that she is not incapable of self-support. Incapacity for self-support will not be considered to exist when the child, by her own efforts, is provided with sufficient income for 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 her condition was such that 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 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) 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 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. 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; and 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. 38 C.F.R. § 3.356(b). As noted above, the outcome of this case turns on whether the appellant has established that she was permanently incapable of self support at the time of her eighteenth birthday. 38 C.F.R. §§ 3.57(a)(1)(ii). Here, the relevant evidence of record fails to show that the appellant was permanently incapable of self-support by reason of mental or physical defect when she attained the age of 18 years in November 1991. The Board acknowledges that there is evidence alluding to the fact that the appellant is currently unable to support herself. However, none of the evidence of record shows that the appellant suffered from physical or mental disability of such severity prior to attaining the age of 18 years that she had become incapable of self-support at that time. In particular, the evidence shows that the appellant was not awarded SSA disability until 1988. Further, an April 2011 psychological assessment records the appellant's report that she was 31 at the time she became too disabled to work. This does not demonstrate incapacity for self support prior to reaching the age of 18. As noted above, the outcome of this case turns on whether the appellant has established that she was permanently incapable of self support at the time of her eighteenth birthday. 38 C.F.R. §§ 3.57(a)(1)(ii). Here, the relevant evidence of record shows that the appellant was not permanently incapable of self-support by reason of mental or physical defect when she attained the age of 18 years in June 1975. The Board acknowledges that there is evidence showing that the appellant is currently unable to work on account of mental or physical disability. However, none of the evidence of record shows that the appellant suffered from physical or mental disability of such severity prior to attaining the age of 18 years that she had become incapable of self-support at that time. There is also no indication that any medical professional has opined that any condition from which the appellant suffered prior to age 18 was severe enough as to make her incapable of self-support. There is also no indication that appellant was incapable of performing her daily activities in the home and community equivalent to the activities of employment of a nature within her physical or mental capacity which would provide sufficient income for reasonable support. Even by her own admission, she was 31 at the time that she became too disabled to work. 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 the appellant as a helpless child of the Veteran within the meaning of the governing legal authority; accordingly, the claim on appeal must be denied. 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). ORDER The claim of entitlement to recognition as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs