Citation Nr: 19181007 Decision Date: 10/24/19 Archive Date: 10/24/19 DOCKET NO. 17-36 073 DATE: October 24, 2019 ORDER Recognition of the appellant as a "helpless child" of the Veteran for the purposes of Dependency and Indemnity Compensation (DIC) is denied. FINDINGS OF FACT 1. The appellant was born in October 1958; her 18th birthday was in October 1976. 2. The evidence does not demonstrate that the appellant was permanently incapable of self-support by reason of a mental or physical condition prior to attaining the age of 18. CONCLUSION OF LAW The criteria for entitlement to recognition of the appellant as a helpless child of the Veteran, based on permanent incapacity for self-support prior to attaining the age of 18, have not been met. 38 U.S.C. §§ 101, 103 (2012); 38 C.F.R. §§ 3.55, 3.57, 3.356 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from December 1943 to April 1946. The appellant is his daughter, and seeks dependency and indemnity compensation (DIC) benefits on the basis of her father’s active duty service. As a threshold issue, she seeks recognition as a “helpless child” of the Veteran for VA purposes. Specifically, she argues that she was incapable of self support prior to reaching the age of 18. For VA purposes, the term “child” includes an unmarried person, who is under the age of 18 years or became permanently incapable of self-support before reaching the age of 18 years. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57(a). A Veteran’s child will be determined to be permanently incapable of self-support if shown, by reason of mental or physical defect, to be permanently incapable of self-support as of his or her 18th birthday. 38 C.F.R. § 3.356(a). 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(b). 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 own support. 38 C.F.R. § 3.356(b)(1). Rating criteria applicable to disabled Veterans are not controlling. A child shown by proper evidence to be permanently incapable of self-support prior to 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 that the cause of the 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 that was only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapacity for self-support otherwise established. 38 C.F.R. § 3.356(b). Employment of a child prior to 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 similar circumstances. In those cases where the extent and nature of the 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 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 prior to the delimiting date or thereafter should not be considered 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). 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). In determining whether an individual is entitled to the status of “child” by virtue of permanent incapability of self-support, VA must analyze the claimant’s condition at the time of his or her 18th birthday. Dobson v. Brown, 4 Vet. App. 443, 445 (1993); see also 38 C.F.R. § 3.356. If the claimant is shown to have been capable of self-support at 18, VA need go no further. If, however, the record reveals that the claimant was permanently incapable of self-support at 18, VA then considers whether the evidence shows that her condition has changed since that time. In her December 2015 application for DIC, the appellant indicated that her father had died in June 1979. She stated that she was born in October 1958, and that she had never married. At that time, she also submitted VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. This appears to have been completed by the appellant rather than a medical provider. Therein, she indicated that she was able to feed herself but unable to prepare meals. She indicated that she did not require nursing home care or medication management, and that she had the ability to manage her own financial affairs. In January 2016, the agency of original jurisdiction (AOJ) denied the appellant’s claim for DIC. It notified the appellant of the criteria for entitlement to DIC or death pension for a surviving child of a Veteran. In March 2016, the appellant submitted a copy of a letter to her from the Social Security Administration (SSA). This correspondence indicates that Social Security benefits were paid from June 1976 to May 1977. The basis of these benefits is unclear. SSA also indicated that beginning January 2015, Supplemental Security Income (SSI) was paid, and that the entitlement was based on the appellant’s being a dependent of a wage earner and a disabled individual. The AOJ requested records from SSA in June 2016. In November 2016, the Veteran submitted a document indicating that she was on SSI/public assistance. A January 2017 clinic note from Webster County Memorial Hospital notes the appellant’s various complaints, including difficulty with ambulation. The provider noted that such might be the result of a degree of cerebral palsy as an infant. The physician’s note indicates that the appellant was capable of discussing her various medical issues, including a gastrointestinal disability and cancer, and the treatments and medications for her diagnoses. Generally, she was alert and oriented. The physician indicated that he had treated the appellant as a child, that she had a history of cerebral palsy, and that her prognosis was fair. He stated that the disability included problems with ambulation. In February 2017, the appellant stated that she graduated from high school in 1977, and that she had never been employed. In May 2017, SSA responded that records had been destroyed. In July 2017, the appellant argued that she had shown that, during her lifetime, she had never been gainfully employed, and that she had suffered from cerebral palsy since birth. She maintained that this evidence should be sufficient to show helpless child status. Having carefully reviewed the record, the Board concludes that criteria for entitlement to recognition of the appellant as a helpless child of the Veteran, based on permanent incapacity for self-support prior to attaining the age of 18, have not been met. While the evidence shows that the appellant has cerebral palsy, and has apparently had this disability since birth, there is insufficient evidence to demonstrate that cerebral palsy caused a permanent incapacity for self-support prior to age 18. Notably, despite being advised of the evidence necessary to establish permanent incapacity for self-support and helpless child status, the appellant has neither submitted nor identified competent evidence demonstrating that her cerebral palsy rendered her incapable of self-support prior to her 18th birthday. Rather, she argues that evidence indicating cerebral palsy since birth and her report that she has never been gainfully employed should be sufficient to support her claim. The Board notes, however, that she has stated that she graduated from high school in 1977. She has also indicated that she is capable of managing her own financial affairs. Moreover, a physician who has treated her since childhood described her cerebral palsy as productive of difficulty with ambulation. He identified no additional concerns regarding this disability. The Board therefore concludes that the evidence as a whole fails to establish a permanent incapacity for self-support prior to the appellant’s 18th birthday. (Continued on the next page)   For the reasons discussed above, the appellant is not legally entitled to DIC benefits based on helpless child status and her claim must be denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.