Citation Nr: 1808538 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-20 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to recognition of the appellant as a helpless child based on permanent incapacity of self-support established prior to the age of eighteen. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty from November 1945 to November 1946. The Veteran died in November 1991. The appellant here is the Veteran's daughter. This matter originally came before the Board of Veterans' Appeals (Board) on appeal of a November 2010 decision of the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO in March 2016. A transcript of the hearing has been associated with the claims file. In April 2016, the Board reopened and remanded the appeal. In a September 2017 appellate brief, the Veteran's representative indicated that the appellant had requested a hearing, and the representative would present oral arguments at the hearing. The representative did not make clear that the appellant was requesting a second hearing instead of simply highlighting the earlier hearing request. (In a later brief submitted in December 2017, the same representative did not indicate that a second hearing was desired.) If the September 2017 brief was intended to be a motion for a second hearing, the representative did not provide good cause for why a second hearing is needed. This appeal was not remanded from the Court of Appeals for Veterans Claims (Court or CAVC), and the representative did not otherwise indicate that the appeal has changed or evolved since the first hearing. Accordingly, the motion for a new hearing is denied. See Cook v. Snyder, 28 Vet. App. 330, 342 (U.S. 2017). Relatedly, in July 2016, after the Board's remand, the appellant filed a response form in which she marked the option indicating that she would be attending the Board hearing schedule for March 2016. This form was dated in February 2016, which was prior to the March 2016 Board hearing. Thus, this submission does not appear to be an indication that the appellant was seeking a second hearing. Rather, it appears she was simply delayed in filing her response form. Misfiled documents were discovered by the Board in this Veteran's claims file. The documents consisted of (1) a list of assets and (2) a June 2010 private doctor's statement. These misfiled documents appear to have been mistakenly included in this appellant's file, but had no impact on the instant appeal. Accordingly, the Board removed these records in January 2018 for association with the correct Veteran's claims file. FINDINGS OF FACT The appellant, prior to attaining age 18, worked to help support her family, attended high school, and got married, and, after turning 18, she had a work history throughout her life. CONCLUSION OF LAW The criteria to recognize the appellant as a "helpless child" of the Veteran are not met. 38 U.S.C. § 101 (2012); 38 C.F.R. §§ 3.55 , 3.57, 3.356 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A. Applicable Law Death benefits may be payable to a child of a Veteran. See 38 U.S.C. § 101(14), (15). The term "child" for VA purposes 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 or was 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 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 approved by the Department of Veterans Affairs. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57(a)(1). On or after January 1, 1975, marriage of a child terminated prior to November 1, 1990, shall not bar the furnishing of benefits to or for such child provided that the marriage has been dissolved by a court with basic authority to render divorce decrees unless VA determines that the divorce was secured through fraud by either party or by collusion. 38 C.F.R. § 3.55(b)(2)(ii). 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. 38 C.F.R. § 3.356(a). 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). 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. 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. 38 C.F.R. § 3.356(b)(2). 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. 38 C.F.R. § 3.356(b)(3). 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)(4). The focus must be on the claimant's condition at the time of her 18th birthday. Dobson v. Brown, 4 Vet. App. 443, 445 (1993). If a finding is made that a claimant was permanently incapable of self-support as of her 18th birthday, evidence of the claimant's subsequent condition becomes relevant for the second step of the analysis, that is, whether there is improvement sufficient to render the claimant capable of self-support. Id. If the claimant is shown to be capable of self-support at age 18, VA is required to proceed no further. Id. The information necessary to establish the extent of the child's disability includes: * the extent to which the child is and was, prior to reaching his/her 18th birthday, physically or mentally deficient, as evidenced by factors such as his/her ability to perform o self-care functions, and o ordinary tasks expected of a child of that age * whether or not the child attended school and, if so, the maximum grade attended * if any material improvement in the child's condition has occurred * if the child has ever been employed and, if so, the o nature and dates of such employment, and o amount of pay received * whether or not the child has ever married, and * a description of the child's present condition. VBA Manual M21-1, III.iii.7.1.c., Information Necessary to Establish the Extent of the Child's Disability. B. Discussion In this case, the appellant has not met the definition of a helpless child. The appellant is now almost 69 years old. She contends that she had meningitis as a child, which left her with permanent mental disabilities. The medical records show that she was treated for meningitis when she was 21 months. The later medical records also show that she was diagnosed at age 28 with schizophrenia, depression, anxiety, and an intellectual disability. The evidence indicates mental health difficulties prior to age 18 and prior to the diagnosis of schizophrenia at age 28. She was hospitalized in December 1977, when she was in her late twenties. On evaluation, a doctor felt she had a "long term" personality disorder with possibly a schizophrenic episode "in the past." A few years later, a work-up resulted in the diagnosis of schizophrenia and intellectual disability. A VA examiner reviewed her case in March 2017 and concluded that the appellant was first diagnosed and treated for schizophrenia when she was 28 years old, which is the average age of onset for females diagnosed with schizophrenia. Although this evidence shows a diagnosis after age eighteen, her mother wrote a supporting statement (undated) indicating that the appellant was followed as a child for her "nervous and mental disorders." The mother's statement is considered credible and probative evidence of this fact. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Also, consistent with her mother's statement, a private doctor wrote in a January 2008 supporting statement that the appellant's "problems are life long." This evidence does not definitively establish that her mental health diagnoses and intellectual disability arose prior to age eighteen. See, e.g., Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Regardless, the claim is denied because the evidence does not show that the appellant was permanently incapable of self-support prior to the date of attaining the age of 18 years. She informed the March 2017 VA examiner that she picked cotton as a teenager to help support her family. This indicates that the appellant was able to perform the activities of employment of any nature within her physical and mental capacity prior to age eighteen. See 38 C.F.R. § 3.356(b)(3). She then she left home to marry in January 1967. According to the marriage certificate, she was seventeen years old at the time of her marriage. She was divorced in July 1976. Because the marriage was terminated after January 1975 (and before November 1990), the fact of her marriage alone does not disqualify her from eligibility. See 38 C.F.R. § 3.55(b)(2). Nonetheless, it tends to weigh against a finding of permanent incapacity for self-support to the extent it indicates a degree of independence and mental capacity beyond that contemplated by the "helpless child" definition. See VBA Manual M21-1, III.iii.7.1.c. In her (undated) letter, the appellant's mother wrote that since her illness at 21 months, the appellant suffered from nervous and mental disorders. For many years, they would take the appellant to see the family doctor. She was constantly in need of care, but at first, no one could figure out why. She was not capable of doing many things, following instructions, or functioning without constant medication. This statement indicates that the appellant has had limited functioning. However, it does not show, for instance, that she was unable to perform self-care functions and the ordinary tasks expected of a child of that age. Of note, it appears the appellant never finished high school. A November 1980 private medical record states that she had a 7th grade education, but functioned at a beginning-of-5th-grade level and seemed "semi-illiterate." More recently, she informed the VA examiner in March 2017 that she had a ninth grade education. Regardless of the maximum grade achieved, the mere fact that she did not finish high school is not sufficient to support the claim as the evidence as a whole does not show a permanent incapacity for self-support. In fact, it appears likely that she left school when she got married as the time periods for these two events appear to coincide. This event would account for the fact that she did not finish school instead of her mental and intellectual disabilities. Importantly in this regard, it appears that she has worked since turning eighteen. While hospitalized in December 1977 for her condition, it was noted that she had been on welfare until 2 years prior. She then worked and supported her family for a year and a half, but her boss tried to make her do something she did not want to do. She "could not express her anger, so got sick and found it necessary to quit, has collected welfare and stayed at home since." More recently, at the Board hearing, the Veteran testified that she was working as a bagger at a military commissary. Board Hr'g Tr. 3. These periods of employment occurred after she turned 18. Nonetheless, they bear on this determination because, inferentially, a person who was permanently incapacitated prior to age eighteen would not be able to work at any point during her lifetime. This is implied in the meaning of "permanently incapacitated." See, e.g., 38 C.F.R. § 3.356(b)(3); VBA Manual M21-1, III.iii.7.1.c. Alternatively, it would indicate that there was an improvement sufficient to render her capable of self-support, which further weighs against the claim. See Dobson, 4 Vet. App. at 445. Finally, there is a statement from the Social Security Administration (SSA) in March 2004 finding that she was not eligible under her father's coverage because she was not "a disabled adult child." The letter does not define the meaning of "disabled adult child." Nor are the remaining SSA records available to review. (In June 2016, the SSA informed VA that the appellant's records were destroyed.) Generally, under the applicable SSA regulations, a claimant is entitled to child's benefits on the earnings record of an insured person who is entitled to old-age or disability benefits or who has died if -- (1) the claimant is the insured person's child, based upon a relationship; (2) the claimant is dependent on the insured; (3) the claimant is applied; (4) the claimant is unmarried; and (5) the claimant is under age 18; is 18 years old or older and had a disability that began before becoming 22 years old; or was 18 years or older and qualified for benefits as a full-time student. 20 CFR 404.350 (2004) (internal citations omitted). The Board observes that this definition closely mirrors that of VA's definition of a helpless child. This SSA determination is, therefore, further evidence tending to weigh against the appeal. Her private doctor, who had treated her since 1993, wrote multiple supporting statements in October 1994, July 1999, November 2002, December 2002, and January 2008. This doctor indicated that the appellant had psychiatric problems and borderline intellectual functioning that had always prevented her from holding a productive job since the childhood illness. This doctor's opinion, in isolation, tends to support her appeal. Ultimately, however, the question at issue here-whether the appellant was incapable of self-support by age eighteen-is an adjudicative one and not a medical one. See, e.g., Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (questions as to employability are adjudicative and not medical); VBA Manual M21-1, III.iii.7.2.c., Rating Activity Considerations in Claims for Permanent Incapacity for Self-Support (The question of permanent incapacity is one of fact for determination by the rating activity based on competent evidence of record.). Because the Board cannot rely on a medical doctor's opinion on a legal matter, the probative value of this doctor's opinion has been weighed as only one more piece of evidence to be considered in reaching the ultimate legal determination. See Sizemore v. Principi, 18 Vet. App. 264, 275 (2004); Colayong v. West, 12 Vet. App. 524, 534-35 (1999) (remanding the claim for a new independent medical examination because the previous examination was obtained by "tainted process"); Bielby v. Brown, 7 Vet. App. 260, 268-69 (1994) (same). To this extent, the Board finds the doctor's opinion to be of limited probative value in light of the conflicting evidence indicating that the Veteran had been able to work a productive job. To conclude, the weight of the most probative evidence establishes that the appellant is not a "helpless child" for the purpose of VA death benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years, and the appeal is denied. ORDER Recognition of the appellant as a "helpless child" of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18 is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs