Citation Nr: 1828005 Decision Date: 05/07/18 Archive Date: 05/18/18 DOCKET NO. 14-41 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to recognition of the appellant as a helpless child based on the permanent incapacity for self-support, established prior to the age of 18. 2. Entitlement to accrued benefits. ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1966 to October 1969. He died in June 1993, and the appellant is his adopted daughter. This case comes before the Board of Veteran's Appeals (Board) on appeal from a May 2013 decision issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. Jurisdiction of the claim is presently at the VA Regional Office (RO) in New York City, New York. In June 2013, the appellant requested a Travel Board hearing, which was scheduled to take place in April 2015. The appellant contacted VA by telephone the day before the scheduled hearing to reschedule; however, she failed to show good cause for this request. Moreover, she has made no contact since this April 2015 telephone call. Therefore, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2017). FINDINGS OF FACT 1. The Veteran died in June 1993. 2. The appellant was born in May 1966 and reached the age of 18 in May 1984. 3. The appellant was adopted by the Veteran before she reached the age of 18. 4. The appellant did not become permanently incapable of self-support by reason of mental or physical defect prior to attaining the age of 18. CONCLUSIONS OF LAW 1. The criteria for recognition of the Veteran's daughter as a helpless child on the basis of permanent incapacity for self-support prior to attaining age 18 have not been met. 38 U.S.C. §§ 101(4)(A), 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.57, 3.102, 3.159, 3.315, 3.356 (2017). 2. The criteria for entitlement to accrued benefits on the basis of the appellant being a "child" of the Veteran are not met. 38 U.S.C. § 101(4), 1542, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.57, 3.950 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial point, the Board notes that because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). The Board observes that general due process considerations have been satisfied. See 38 C.F.R. § 3.103 (2017). In pertinent part, the appellant has been provided sufficient opportunity to present evidence and argument in support of this claim, and she has in fact done so, including her notice of disagreement (NOD), and her November 2014 substantive appeal. Analysis The appellant seeks entitlement to DIC benefits based on dependency status as a helpless child. She also seeks entitlement to accrued benefits as the deceased Veteran's daughter. A. Entitlement to Recognition as a Helpless Child VA law provides that the term "child of the veteran" 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 or an illegitimate child; and is under the age of 18 years; or before reaching the age of 18 years, became permanently incapable of self-support; or after reaching the age of 18 years and until completion of education or training, but not after reaching the age of 23, is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4) (2012); 38 C.F.R. § 3.57 (2017). To establish entitlement to the benefit sought on the basis of being a helpless child, various factors under 38 C.F.R. § 3.356 are considered. The primary factors for consideration are: (1) The fact that an individual 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 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. (3) It should be kept 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 a consideration of 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. 38 C.F.R. § 3.356 (2017). The United States Court of Appeals for Veterans Claims (Court) has held that, in cases such as this, the focus of analysis must be on the individual's condition at the time of his or her 18th birthday to determine whether that individual is entitled to the status of "child." See Dobson v. Brown, 4 Vet. App. 443, 445 (1993). Stated another way, for purposes of initially establishing helpless child status, the individual's condition subsequent to his or her 18th birthday is not for consideration. However, if a finding is made that a claimant was permanently incapable of self-support as of his or her 18th birthday, then 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 18, VA is required to proceed no further. Id. In her November 2012 application for DIC benefits, the appellant reported that she had no current income other than benefits that she received from the Social Security Administration (SSA). She also wrote that she had neither tangible nor intangible assets. In her May 2013 notice of disagreement, the appellant contended that she is entitled to DIC on the basis of being disabled from 1989 to 1992. Here, she noted that she received SSA disability benefits in order to support the Veteran and her mother. As the Veteran and her mother are deceased, according to the appellant, she is entitled to DIC benefits. In her November 2014 substantive appeal, the appellant wrote that she has sought psychiatric help for her losses and associated emotional disturbances. She added that her losses made her depressed and even suicidal. As discussed above, the outcome of this issue turns on whether the evidence establishes that the appellant was permanently incapable of self-support before her 18th birthday. See 38 C.F.R. § 3.57(a)(2)(ii) (2017). The undisputed facts in this case show that the appellant was born on May [REDACTED], 1966 and reached the age of 18 on May [REDACTED], 1984. The appellant was adopted by the Veteran before the age of 18. The appellant did not become permanently incapable of self-support by reason of mental or physical defect prior to attaining the age of 18. The Veteran died in June 1993. In September 2014, VA sent the appellant correspondence which described in great detail the evidence required to support her claim. See September 24, 2014 letter. To be considered "helpless," VA requires: 1) A statement from a physician who knows of the appellant's condition showing the extent of disability, diagnosis, prognosis, and date of onset; 2) Information, if applicable, of the appellant's placement in an institution for treatment, training, or custodial care. Specifically, an institutional official must a statement addressing the appellant's condition at institutional entrance and institutional discharge, as well as opining as to whether any improvement had occurred or could be expected; 3) If the appellant had attended school, a statement from a school official showing whether any progress had occurred or could be expected; 4) If the appellant had ever been employed, a statement delineating dates of employment and the respective amount of earnings; and lastly, 5) In the event that the appellant could not supply the aforementioned evidence, statements from at least two persons who knew of the appellant's condition at age 18 and after were required. A review of the evidence of record reveals that the appellant has provided none the evidence enumerated above. Moreover, she has not assisted VA in an effort to obtain this requisite evidence from identifiable institutions or fully identifiable providers. Here the Board emphasizes that while VA has a statutory duty to assist an appellant in developing evidence pertinent to a claim, the appellant also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist an appellant in developing her claim, rather than a duty on the part of VA to develop the entire claim with the appellant performing a passive role. See Turk v. Peake, 21 Vet. App. 565, 568 (2008). As the appellant has provided no required evidence, the record, as a whole, fails to support her claim for DIC benefits based on her dependency status as a helpless child. Although the appellant is the Veteran's daughter, she is an adult, and is not a "child" for VA purposes. The appellant was born on May [REDACTED], 1966, was 46 years of age at the time that she filed her claim, and is not shown to be permanently incapable of self-support before the age of 18. Therefore, the undisputed facts show that the appellant does not meet eligibility requirements as a child under the governing statutes and regulations. Because the appellant does not qualify as a "child" of the Veteran for VA purposes, the Board finds that the claim of entitlement to DIC must be denied. As the disposition of this claim is based upon the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). B. Accrued Benefits Since the appellant does not qualify as a "child" of the Veteran for VA purposes, the Board finds that entitlement to accrued benefits must be denied. Again, as the disposition of this claim is based upon the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis, supra. Moreover, because the law, rather than the facts of the case, is controlling, the provisions of 38 U.S.C. § 5107(b) (2017) are not for application. ORDER Entitlement to recognition of the appellant as a helpless child based on the permanent incapacity for self support, established prior to the age of 18 is denied. Entitlement to accrued benefits is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs