Citation Nr: 21001277 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 12-25 153 DATE: January 7, 2021 ORDER Entitlement to recognition of A.S. as the Veteran's “helpless child” on the basis of permanent incapacity for self-support prior to attaining the age of 18 is denied. FINDING OF FACT The Veteran’s daughter, A.S., was not permanently incapable of self-support on or prior to her 18th birthday. CONCLUSION OF LAW The criteria for entitlement to recognition of A.S. as the Veteran's "helpless child" on the basis of permanent incapacity for self-support prior to attaining the age of 18 have not been met. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to January 1977. A.S. is her adult daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Veteran testified before the undersigned at a Board hearing held via videoconference. A transcript of that hearing is of record. The Board remanded the matter in August 2015, October 2019, and October 2020. The requested development has been completed and the case has been returned to the Board for further appellate action. The Board finds there has been substantial compliance with the previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). All records identified by the Veteran were either been obtained, or VA was informed that the records no longer exist. In November 2020, VA scheduled the Veteran’s daughter for a VA examination. The Veteran cancelled the examination, stating she no longer wished to pursue the claim. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to recognition of A.S. as the Veteran's "helpless child" on the basis of permanent incapacity for self-support prior to attaining the age of 18 The Veteran seeks additional dependency compensation for her daughter, A.S., on the basis of permanent incapacity for self-support prior to attaining the age of 18. The Veteran contends, in effect, that as a result of A.S.’s SIED (significantly identifiable emotional disability), diagnosed prior to her 18th birthday, she was rendered permanently incapable of self-support prior to her 18th birthday, and hence is entitled to helpless child status. 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 (a so-called “helpless child”), 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. See 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. On this record, A.S. attained the age of 18 on August [REDACTED], 1996. In an August 2011 statement, the Veteran indicated that A.S. was placed in special education due to a hearing deficit when she was 7 years old. She indicated A.S. suffered from mental illness since 1983 when her maternal grandmother passed away. She indicated A.S. was placed in Jefferson Hills Lakewood, Colorado where she was housed by the county court to put her on a productive track. An October 1993 High School Psychological Assessment indicates that A.S. received special services support since at least first grade. The psychologist noted that in 1985, when she moved to Englewood from Nebraska, original disabilities were identified as learning disability and speech/language disability. She noted that in May 1986, it was determined that a Significant Identifiable Behavioral and Emotional Disability was primary and since that time she has continued to remain eligible for special services support. She explained A.S. was on probation and she has been a recipient of services through “Senate Bill 94.” Some problems noted included fighting with peers, two adjudications for theft and two dismissed adjudications, and truancy from school and repeated police contact. The psychologist noted current diagnoses included conduct disorder and depressive disorder, as well as concerning behavioral descriptors include fear regarding returning to high school and behavior escalation with trivial incidences in school. It was noted that A.S. struggled with peer relations and she was argumentative, negative, and exhibited rude behaviors. The psychologist noted A.S. was making progress in limiting her impulsiveness and that she is more able to control herself than in the past. She noted an October 1992 assessment identified depression, conduct disorder, attention deficit disorder with hyperactivity and a receptive language disorder. She further noted previous evaluations have consistently estimated A.S. to be of average intellectual ability. Auditory memory and auditory processing of verbal information have been relative weaknesses. It was noted that A.S.’s behavior within the school was rated by three different individuals and overall percentile ranks on the Attention Deficits Disorders Evaluation Scale varied widely and included overall percentiles of 57th, 37th, and 16th percentile. The psychologist noted that the most concerning behaviors included difficulty with listening, concentration, following verbal directions, impulsivity, complying with school personnel, becoming overexcited, and ignoring the consequences of her behavior. It further noted that A.S. made some gains regarding the long standing behavioral and emotional issues that have limited her academic and social development through the school years. The psychologist determined that it seemed many unresolved issues and self-defeating behaviors continued that needed to be addressed for A.S. to best profit from her scholastic endeavors. An August1995 School Special Education report noted A.S.’s medical history included significant identifiable emotional disorder, ADHD, oppositionalism, learning disability, suicidal ideations, poor impulse control, mild to moderate depression, and that she was placed in Jefferson hills placement for therapeutic and school education program. It noted A.S. was in special education classes for the duration of her academic years and on her achievement test, she scored at the following grade levels; Reading-5.1, Math-4.6, Written Language-4.7, and Knowledge-7.4. The examiner felt that it was not a true reflection of A.S.’s ability and was based on lack of motivation, acting out behaviors, and lack of classroom practice. Also, her variable attention span and distractibility may have negatively contributed to her low scores. Based on previous cognitive testing using the WISC-R, it was noted A.S. has scored in the average range of intellectual ability. It was noted she is extremely impulsive and has poor decision-making skills. The examiner noted she can be cooperative and has the ability to do well educationally. She noted A.S. enjoys working with her hands and feels that she is good at it. A.S. was noted to be demanding at times and experienced mood swings, resistiveness, and acted entitled. It was noted A.S. had difficulty with intense emotions. It was also noted A.S. enjoyed crafts and sewing, and she attended beauty school. It was recommended that A.S. be involved in a class which would present her with career and job choices and in which she could learn job skills, as well as a class in life skills. SSA records reflect that A.S. was considered disabled since November 15, 2003. Health records from the County jail from 2007 reflect A.S. has a history of bipolar disorder and she was detained for the purpose of restoration to competency. She was uncooperative, hostile, and disorganized. She was seen for a competency evaluation in July 2007 and she was diagnosed with a Mood Disorder, NOS, rule out substance abuse, and rule out posttraumatic stress disorder. Based on the evidence of record, the Board finds that A.S. was not rendered incapable of self-support prior to attaining the age of 18. Although the evidence explains A.S.’s history of participation in a special education program and notes her SIED and other psychiatric disorders, there is insufficient evidence to find that A.S. became permanently incapable of self-support by reason of a mental or physical disability prior to attaining the age of 18. The Board’s attempt to assist in obtaining this evidence was met with an indication that the Veteran did not want to pursue the claim any further, and the cancelling of the examination that could have provided this necessary information. The Board recognizes that A.S. had limitations and emotional disturbance prior to the age of 18. However, the permanence of these disorders at the age of 18 is not shown by the evidence of record. A.S. had some behavior problems, but the evidence from that time did not indicate they were so severe and of such a nature as to be permanent. In other words, it appeared she could improve. Although looking back at the evidence since A.S. turned 18, she may have been manifesting some symptoms. However, for purposes of initially establishing helpless child status, the claimant’s condition subsequent to his or her 18th birthday is not for consideration. As there is insufficient evidence to establish permanent incapacity for self-support, the claim must be denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, 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.