Citation Nr: 20036710 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 16-54 242 DATE: May 28, 2020 ORDER Eligibility for Dependency and Indemnity Compensation (DIC) as the helpless child of the Veteran is denied. FINDING OF FACT The appellant 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 the appellant as a “helpless child” of the Veteran have not been met. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1941 to January 1945 and from March 1946 to September 1950. He died in October 1994. The appellant is his daughter. This matter is on appeal of an August 2016 rating decision. The case was previously before the Board in January 2019 when it was remanded for further development. Although the January 2019 Board remand characterized the issue as whether new and material evidence has been submitted to reopen a previous determination, a full review of the claims file reflects that the previous claim was filed by the Veteran and not by the appellant. 38 C.F.R. § 20.1106 (stating that issues involved in a survivor’s claim for death benefits will be decided without regard to any prior disposition of those issues during the Veteran’s lifetime). Accordingly, the issue has been recharacterized as indicated above. In May 2020, the appellant submitted VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), indicating that she was opting into the modernized review system from the October 2019 supplemental statement of the case and selecting to have evidence submission review by a Veterans Law Judge. Unfortunately, the Form 10182 was submitted after the time period allowed to opt into the modernized review system. 38 C.F.R. § 19.2. As such, the appellant’s Form 10182 is not accepted as a valid opt-in to the modernized review system and the claim will proceed in the legacy appellate system. Recognition of the Appellant as the Helpless Child of the Veteran The appellant contends that she is entitled to DIC benefits as a helpless child of the Veteran as she is rendered incapable of self-support as a result of poliomyelitis contracted in September 1972. For purposes of determining eligibility as a claimant, a child must be unmarried and either must be 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. 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 for consideration. 38 C.F.R. § 3.356. The 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. The Court has held that, in “helpless child” cases, the focus must be on the claimant’s condition at the time of his or her 18th birthday. See 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 18th birthday is not for consideration. If a finding is made that a claimant was permanently incapable of self-support as of his or her 18th birthday, however, 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 age 18, VA is required to proceed no further. Id. The appellant was born in September 1967 and attained the age of 18 in September 1985. Competent evidence of record shows that the appellant had a physical disability of both lower extremities due to poliomyelitis, contracted in September 1972. In a May 1978 letter, the Veteran notified VA that the appellant was permanently paralyzed from the hips down after being diagnosed with poliomyelitis when she was 3 years old. He requested that her status as a dependent be extended beyond the age of majority as a result of her permanent disability. VA, in a June 1978 letter, informed the Veteran that action would be taken on his claim 3 months before the appellant’s 18th birthday. An October 1983 letter from the Veteran indicated that the appellant was currently in high school but could not walk without the aid of crutches and that she could barely crawl without the assistance of someone else. The Veteran stated that he was unsure whether he would let her go to college or a vocational school because she would be unable to be gainfully employed due to her permanent physical disability. In December 1983, the Veteran wrote to VA requesting information regarding a program for specialized restorative training for the appellant. A medical certificate issued in July 1985 by a private physician, indicates that an examination of the appellant found her to be mentally sound but having physical disability of both lower extremities. The examiner noted that she walked with crutches due to poliomyelitis. A January 1986 VA examination found the appellant to be a paraplegic with atrophy of both her lower extremities. Her upper extremities were strong and well-developed. She had no bowel and/or bladder symptoms and was able to walk with the aid of 2 crutches. The diagnostic impression was status post vaccinal myelitis. There was also X-ray evidence of marked scoliosis of the dorsal and lumbar spines. A February 1986 rating decision denied the Veteran’s claim for restorative training for the appellant based on a finding that the criteria to find the appellant a helpless child for VA purposes had not been met as the evidence did not show that she was permanently incapable of self-support due to a physical or mental defect at the time of her 18th birthday. In August 1986 the Veteran requested reconsideration of the determination because he believed her earning power was totally “destroyed” as a result of her physical disability. However, a September 1986 VA letter to the Veteran advised that there was no change to the previous determination as no new and material evidence had been presented. In June 1987, the Veteran submitted a Request for Approval of School Attendance for the appellant, that was subsequently allowed. This request reflected that the appellant would be attending a University to obtain a Bachelor of Science in Commerce and was expected to graduate in March 1993. The Veteran died in October 1994, and his surviving spouse was awarded DIC benefits in a March 1995 rating decision. A July 1995 rating decision granted service connection for the cause of the Veteran’s death. The Veteran’s widow died in December 2009. The appellant filed her claim for DIC in November 2014. A May 2015 letter to the appellant advised her of what survivors of a veteran are eligible to receive DIC benefits, including unmarried children who became helpless before reaching age 18. February 2015 and December 2016 medical certificates from private physicians indicate that appellant was unable to walk without the aid of crutches and used a wheelchair as a result of physical disability due to poliomyelitis contracted in September 1972. Two February 2017 medical certificates from private physicians state that the appellant’s physical disability necessitated aid and attendance from another person for daily activities and totally and permanently incapacitated her. In her written contentions, submitted in February 2017, the appellant contends that her condition in 1986 was different from her current condition as it was not yet severe at that time. In May 2020, the appellant submitted medical evidence describing the nature of poliomyelitis; however, this evidence does not clearly address whether her poliomyelitis caused the appellant to be permanently incapable of self-support at the time of her 18th birthday. Upon review of the record, the Board finds that the evidence does not demonstrate that the appellant was permanently incapable of self-support by October 1985, when she reached the age of 18. To the contrary, the evidence shows that she was attending high school in October 1983, and that there was later verification that she attended a university beginning in June 1987. The July 1985 medical certificate reflects that she was mentally sound, but that her poliomyelitis required her to walk with crutches. Although this evidence reflects the appellant had a disability of the lower extremities, it does not reflect that it caused her to be incapable of self-support at the time of her 18th birthday. Regrettably, the Board finds that while the appellant’s condition is currently severely disabling, and the evidence of record shows that while she had physical limitations at the time she attained the age of 18, there is insufficient evidence in the record to show that such limitations rendered her incapable of self-support at that time. She was able to attend high school and later university. While she has submitted medical evidence that her physical disability currently necessitates aid and attendance from another person for daily activities and is totally and permanently incapacitating, she has not presented any evidence that it was so disabling at the time of her 18th birthday. Indeed, in her written contentions, the appellant asserts that her condition was different in 1986 and not as severe. Accordingly, the Board finds that the appellant is not entitled to recognition as a helpless child on the basis of permanent incapacity for self-support at the time of attaining the age of 18. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the appellant’s claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. J. Wells-Green 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.