Citation Nr: 19129702 Decision Date: 04/16/19 Archive Date: 04/16/19 DOCKET NO. 17-60 120 DATE: April 16, 2019 ORDER Entitlement to recognition of the Veteran’s daughter, L.W., as a “helpless child” on the basis of permanent incapacity for self-support before the age of 18 is denied. FINDING OF FACT L.W. has not been shown to have been permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria for recognition of L.W. as a “helpless child” of the Veteran have not been met. 38 U.S.C. § 101(4)(A) (2012); 38 C.F.R. § 3.356 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1974 to April 1976. The appellant, the Veteran’s daughter, L.W., was born in July 1972; her 18th birthday was in July 1990. Entitlement to recognition of the Veteran’s daughter, L.W., as a “helpless child” on the basis of permanent incapacity for self-support before the age of 18 The appellant, L.W., contends that she is entitled to an apportionment of the Veteran’s benefits as a helpless child. Specifically, she claims she was rendered incapable of self-support prior to attaining the age of 18. Compensation benefits may be apportioned on behalf of a veteran’s spouse, children, or dependent parents when certain conditions are met. 38 U.S.C.§ 5307. A “general” apportionment may be paid if the Veteran is not residing with his spouse or if his children are not residing with the Veteran and the Veteran is not reasonably discharging his responsibility for the spouse’s or the children’s support. See 38 C.F.R. § 3.450 (a)(1)(ii). For purposes of Title 38 of the United States Code, the term “child” is specifically defined as being unmarried, and must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.356 (2012). The appellant contends that she became permanently incapable of self-support before the age of 18. If supported by the evidence, this would render her a child of the Veteran for VA purposes under 38 U.S.C. § 101(4)(a)(ii). The record includes a birth certificate that indicates that the appellant is the biological daughter of the Veteran; she was born in July 1972, and he thus attained the age of 18 in July 1990. To establish entitlement to VA benefits on the basis of being a helpless child, various factors under 38 C.F.R. §3.356 are for consideration. Principal factors for consideration 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. 38 C.F.R. § 3.356. The United States Court of Veterans Appeals (Court) has 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 claimant’s condition subsequent to his or her eighteenth 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 eighteenth 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 eighteen, VA is required to proceed no further. Id. By way of background, the Veteran’s daughter, L.W., attained the age of 18 in July 1990. She contends that she constitutes a helpless child because she became incapable of self-support prior to the age of 18 due to her severe mental health problems. The appellant stated that she was an inpatient for her mental health problems and that she has not been able to keep a job long. See August 2017 and December 2017 statements. The evidence of record reflects that L.W. has suffered from various psychiatric disabilities and has required inpatient stays for treatment at various times beginning in 1989. She was, however, able to successfully graduate from high school and attended some college. A June1993 Job Options discharge summary shows that she was referred for a ten-day work assessment, but was involved for two visits. It was noted that her work tolerance was marginal due to her inability to follow through. Private treatment records show that L.W. received mental health treatment through Fresno County Behavioral Health for over 13 years, but she had not received treatment in the five years prior to December 2012 and managed her mental health issues through staying active in her church community and with the support of her family. However, it was also noted that she lives on her own and supports herself on SSI (Supplemental Security Income). At that time, she was noted to have problems with her occupation. See December 2012 private treatment report. Social Security records provided by L.W. show she was medically approved for SSI benefits in May 1990. However, a March 2017 SSA Disability Determination and Transmittal record indicates that L.W.’s vocational background was in other personal service occupation (e.g., hostesses, stewards, hospital attendant, practical nurses, etc.). Section 22 lists N1 as the Reg-Basis Code which indicates that she is engaging in substantial gainful activity. It was noted that she continues to work at the same level in prior years and 2015 and 2016 earnings were reported. It was further noted that she averages 35 hours per week. L.W. also submitted a summary of earning for years which reflect that she began engaging in substantial gainful activity in 2011. An Employment Verification report was also submitted noting that she was hired in August 2014 and terminated in November 2014 and worked an average of 40 hours per pay period. To the extent that she may have been permanently incapable of self-support through her own efforts by reason of mental or physical defect by or before her 18th birthday in July 1990, the evidence reflects that L.W. was employed and capable of self-support beginning in 2011. This is prima facie evidence that she is not incapable of self-support. 38 C.F.R. § 3.356. Therefore, incapacity for self-support does not exist, because L.W. by her own efforts is provided with sufficient income for her reasonable support. Id. In sum, there is no question that L.W. has had psychiatric disabilities, and it is not in dispute that such may affect her health for a lifetime. However, the evidence as a whole simply does not establish that she was, prior to or at age 18, permanently incapable of self-support. For these reasons, she is not entitled to recognition as a “helpless child.” Because the criteria for “helpless child” are not met, the preponderance of the evidence is against the claim for an apportionment of the Veteran’s benefits on the basis of helpless child. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Williams, Counsel