Citation Nr: 18123722 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 15-32 440 DATE: August 2, 2018 ORDER Entitlement to recognition as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to the age of 18 is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the appellant was permanently incapable of self-support by reason of mental or physical defect as of his eighteenth birthday. CONCLUSION OF LAW The criteria for recognition of the appellant as a helpless child 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); 38 C.F.R. §§ 3.57, 3.159, 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1958 to August 1961. He died in August 1995. The appellant is his son. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to recognition as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to the age of 18 The appellant contends he 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. The term “child,” in pertinent part, is an unmarried person who, before reaching the age of 18 years, became permanently incapable of self-support by reason of mental or physical defect. 38 U.S.C. § 101 (4); 38 C.F.R. § 3.57, 3.356(a). Incapacity for self-support does not exist when the child by his own efforts is provided with sufficient income for his support. 38 C.F.R. § 3.356 (b)(1). 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. 38 C.F.R. § 3.356. The principal factors for consideration under 38 C.F.R. § 3.356 are: (1) 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. (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 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 claimant’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 claimant capable of self-support after the age of 18. Id. Turning to the facts in this case, the evidence of record shows that the appellant was born in July 1967 and attained 18 years of age in July 1985. Upon review of the record, the evidence does not demonstrate that he was permanently incapable of self-support by July 1985, when he reached the age of 18. Specifically, none of the available records apply to the period prior to the Veteran turning 18. However, taking into consideration later records, the Board finds the evidence still does not demonstrate that the appellant was permanently incapable of self-support by July 1985, when he reached the age of 18. Medical records from several weeks after he turned 18 show he was involved in an accident that resulted in a head injury, which appeared to be a concussion, and some orthopedic complaints. There is no evidence that this later accident was indicative of prior incapacity for self-support. Even later records starting when the appellant was age 21 does show a variety of mental health diagnoses. One December 1988 psychodiagnostic testing evaluation indicated that the appellant self-reported doing “worse” between Fall 1984 and Spring 1985, when he dropped out of school, used “a great deal of drugs and alcohol,” was kicked out of his home, and when he was involved in the aforementioned accident. The examiner also noted the appellant did not do well in school prior to the accident, showing a low level of functioning possibly related to intellectual functioning. However, the examiner did suggest that he pursue vocational counseling. This does not demonstrate that he became permanently incapable of self-support by reason of mental or physical defect before reaching the age of 18. Thus, upon review of this evidence, the Board finds that the weight of the evidence of record is against a finding that the appellant became permanently incapable of self-support by reason of mental or physical defect before reaching the age of 18. In making this determination, the Board has sympathetically considered the appellant’s statements in which he attests to significant impairment from the age of 13 onward. The RO sought relevant records, to include SSA records, but VA was notified that these records were not available. Considering the evidence of record, although cognizant that the appellant can attest to severe circumstances such as being homeless, the Board finds that he is unable to attribute these to a mental or physical defect. The Board also finds considering the evidence of record that VA does not have a duty to further assist or develop this appeal. Importantly, as noted by the appellant in his lay statements, he was not diagnosed with such psychiatric disability until after he was 18 (although he asserts that began earlier) and, as noted, a significant accident, occurred after he was 18. Considering all this evidence, the Board finds that the preponderance of the evidence weighs against a finding that the appellant was not capable of self-support by reason of mental or physical defect by to attainting the age of 18.   As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dean, Counsel