Citation Nr: 20008430 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 17-22 888 DATE: January 31, 2020 ORDER The claim for permanent incapacity for self-support is denied. FINDING OF FACT The Appellant is not shown to have been permanently incapable of self-support by reason of a mental or physical condition prior to attaining 18 years of age. CONCLUSION OF LAW The criteria for dependent child benefits on the basis of permanent incapacity for self-support before attaining the age of 18 are not met. 38 U.S.C. §§ 101 (4)(A), 5107; 38 C.F.R. § 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to April 1969 and from April 1979 to July 1986. The Veteran died in January 2010 and the Appellant is his daughter. 1. Whether permanent incapacity for self-support may be established for the Appellant. The Appellant contends that she is entitled to helpless child benefits on the basis of being permanently unable to support herself before the age of 18. The Board concludes that she does not qualify for such benefits. Veterans that have been awarded 30 percent or more for service-connected disability are entitled to additional compensation for dependents. 38 U.S.C. § 1115; 38 C.F.R. § 3.4 (b)(2). The term "child" for purposes of benefits under Title 38 of the United States Code is specifically defined. For the purpose of claiming eligibility under Title 38, a "child" must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before reaching the age of 18 by reason of mental or physical defect at the date of attaining the age of 18 years, 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); 38 C.F.R. §§ 3.57 (a)(1), 3.315, 3.356. Rating decisions regarding whether a child is shown to be permanently incapable of self-support will be made solely on the basis of whether the child is permanently incapable of self-support through his own efforts by reason of physical or mental defects. 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). 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 own support. 38 C.F.R. § 3.356 (b)(1). Lack of employment of the child either 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)(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 of analysis is on the child's condition at the time of his 18th birthday. It is that condition which determines whether entitlement to the status of "child" should be granted. Dobson v. Brown, 4 Vet. App. 443 (1993). Initially, the Board notes that the Appellant was born in October 1979. As a result, the Board must evaluate whether the Appellant qualified for such benefits prior to October 1997, the month she turned 18. The Board concludes that the Appellant does not qualify as a helpless child on the basis of permanent incapacity for self-support before attaining the age of 18. While medical treatment records and statements from her treating physicians establish that the Veteran experienced significant childhood trauma and was in receipt of mental health diagnoses while in high school, the evidence does not demonstrate that she was permanently incapable of self-support by the age of 18. In fact, the evidence demonstrates that the Appellant earned an undergraduate degree following high school and was employed for a significant period of time after that, including with a domestic abuse support hotline. Of the medical evidence associated with the claims file, the only evidence documenting treatment prior to October 1997 is a statement from Dr. G. H., in which the Veteran’s treatment from 1994 to 1997, diagnoses of depression and anxiety, and suicidality were noted. The statement did not include any opinion or evidence of an inability of the Appellant to support herself or complete activities consistent with self-support. Similarly, the remaining medical evidence documents that the Appellant’s mental health symptoms began during and as a result of her childhood; however, none of the treatment providers opined or even suggested that she was permanently incapable of supporting herself prior to the age of 18. Moreover, Social Security Administration (SSA) records document the Appellant’s reports that her mental health disability became so severe in 2004 that she could not work as well as a medical examination affirming that contention. While the Board acknowledges the Appellant’s statements that she suffered from significant mental illness prior to turning 18 years of age, there is no contemporaneous medical evidence that documents that she, by the age of 18 in 1997, was permanently incapable of self-support. The complete lack of evidence demonstrating significant deficiencies in educational performance, work history, and daily functioning prior to October 1997, as well as the evidence that she graduated high school, graduated college, and maintained employment thereafter renders the record insufficient to demonstrate that the appellant suffered permanent incapacity for self-support prior to attaining age 18. Based on the foregoing discussion, the Board finds that the criteria are not met to recognize the Appellant as a dependent child on the basis of permanent incapacity for self-support prior to the age of 18. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. B., 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.