Citation Nr: 21001196 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-14 890A DATE: January 7, 2021 ORDER Entitlement to recognition of R.T. as the Veteran’s “helpless child” on the basis of permanent incapacity for self-support prior to attaining age 18 is granted. FINDING OF FACT R.T. is the Veteran’s unmarried biological son and became permanently incapable of self-support prior to attaining age 18. CONCLUSION OF LAW The criteria for recognition of R.T. as the “helpless child” of the Veteran have been met. 38 U.S.C. §§ 101(4)(A), 5107; 38 C.F.R. §§ 3.57, 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from September 1942 to January 1946. He died in February 2013. R.T. is his adult son. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant, R. T. appeared and testified before the undersigned Veterans Law Judge at a virtual hearing conducted in September 2020. A transcript of the hearing is included in the claims file. Entitlement to recognition of R.T. as the Veteran’s “helpless child.” The appellant seeks VA benefits on the basis of his recognition as the Veteran’s child. VA only recognizes certain unmarried individuals as a “child” for these purposes. To be considered a veteran’s child, the individual in question 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). Where, as here, the child’s age exceeds age 23, the Board must consider what permanent effects the child’s physical or psychological conditions on his or her ability to support themselves before attaining the age of 18. 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 after the 18th birthday is not for consideration. If a finding is made that a claimant was permanently incapable of self-support as of the time of the 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 largely cites gastrointestinal, hearing-related, and psychological factors that have prevented him from being able to support himself throughout his life and asserts that his substantial difficulties began in childhood. At the hearing, he explained that while in school he was in special education classes and had difficulties with learning and hearing in addition to his stomach issues. The appellant stated further that services that were provided at the time he was in school were substantially more primitive than those provided to today’s special needs students and estimated that he would not have been able to progress past first grade based on current educational standards. He estimated that he missed between 20 and 25 days per school due to his nearly daily alternating issues of vomiting and diarrhea. Due to his disabilities, the appellant stated that he was granted disability benefits administered by the Social Security Administration (SSA) and he testified that although these benefits were briefly terminated in the 1990s, his benefits were subsequently reinstated. In support of his claim, the appellant also submitted a statement from his older sister in December 2013. She confirmed that the appellant had both hearing and stomach problems since birth that ultimately led to his need for extensive ear surgery in 1978. The appellant’s sister also stated that his hearing has since become worse to the point that he has become almost completely deaf. To date, the appellant’s claim has been denied due to the absence of evidence of disability prior to his 18th birthday. As explained above, the evidence of his functioning at that time in June 1976 is of central importance to his claim. Indeed, it was several years after this birthday that SSA ultimately found the Veteran to satisfy that agency’s criteria for a disabled individual in October 1978. However, the appellant has since submitted a substantial amount of medical records that served as the basis for SSA’s determinations that include multiple evaluation reports of the appellant’s speech, hearing, and gastrointestinal difficulties dating back to early childhood. For instance, the record now includes a September 1966 speech evaluation report which stated that although he had normal activities of daily living, he exhibited an obvious speech defect as well as possible hearing loss. Childhood records also include a July 1968 private evaluation report that included evidence of the appellant’s considerable difficulty with intermittent episodes of lower abdominal cramps. Although there is no indication at that time that the appellant’s treating clinicians considered a link between those gastrointestinal symptoms and any psychological dysfunction, the records from shortly after his 18th birthday clearly suggest that these stomach-related symptoms have been linked to his psychological symptoms. Indeed, at an examination in January 1979, the appellant reported symptoms of severe pain and flare ups in his colon problems at least a half a day per month. At that time, the appellant was actively being considered for vocational rehabilitation services due to his colon and possibly psychiatric problems. Later that month, an extensive psychological evaluation determined that the appellant had only brief periods of employment in fast food and maintenance settings but that his high-strung nature and spasmodic colon represented psychophysiological gastrointestinal reaction that was moderately severe to severe. The examiner also stated that the appellant had moderately severe anxiety. Medical evidence contained in the appellant’s SSA records continued to document ongoing psychological limitations and difficulties and, by June 1980, also included a diagnosis of a personality disorder. The SSA documents also contain contemporaneous medical evidence from only shortly after the appellant turned 18. He has since stated that those same symptoms manifested in childhood, and the record now includes childhood treatment records that appear to corroborate his current statements that he experienced both severe gastrointestinal symptoms and substantial difficulties with communication while in school. This evidence is competent, probative, and credible with respect to determining whether the appellant was capable of working at the time of his 18th birthday and weighs in favor of a finding that he was permanently incapable of self-support at that time. However, the record also contains several pieces of credible medical and lay evidence suggesting that the appellant may not have been permanently precluded from working life and from supporting himself. In an August 1978 treatment note, although the Veteran was reported to have stated that the appellant was sickly all his life and current ear problems rendered him unemployable, the Veteran reportedly related his hope that after the appellant’s ear surgery, his son would be able to be employable. In September of that year, the Veteran also explicitly noted his frustration with the appellant’s apparent lack of motivation to seek employment. In the late 1970s and the early 1980s, the record also indicates that the appellant was working in a sheltered work environment. A December 1979 statement from a treating physician also appears to suggest that the appellant’s difficulties at that time with work and self-support may not have been permanent in nature. Notably, this clinician expressed his hope at that time that the appellant may be able to realize his potential and work outside of a sheltered environment. In addition to these records, treatment notes from the late 1980s include statements from examining clinicians that allude to these medical professionals’ beliefs that the appellant had been attempting to manipulate his clinicians or was engaging in malingering. (Continued on the next page)   The Board finds that this probative evidence weighs against the appellant’s contention that he has been permanently incapable of providing for himself since before age 18. The record also includes evidence of some employment history. For instance, the appellant reported extensive sheltered work history as well as very brief episodes of fairground work in December 1987. The Board ultimately does not find that this work is disqualifying. The pertinent regulation guiding the Board in its evaluation of whether the appellant has been rendered permanently incapable of self-support explicitly notes that employment of a child may not be a normal situation and may include casual, intermittent, tryout, or unsuccessful work. 38 C.F.R. § 3.356(b). As such, the Board does not find that it unequivocally rebuts a contention of permanent incapacity for self-support. Ultimately, the Board finds that the probative, credible, and competent evidence includes evidence both for and against the proposition that, at the time the appellant attained age 18, he was permanently incapable of supporting himself. After considering all this evidence and the appellant’s lay assertions, the Board finds that the opposing evidence is entitled to equal probative weight. In such situations, reasonable doubt shall be resolved in the appellant’s favor. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board therefore finds that the criteria for entitlement to recognition of the appellant as the Veteran’s “helpless child” have been met. The appeal is granted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Whitelaw, Associate 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.