Citation Nr: 21002548 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 18-26 405 DATE: January 14, 2021 ORDER The petition to reopen the claim of entitlement to recognition of H.J.C. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18, is granted. Entitlement to recognition of H.J.C. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is granted FINDINGS OF FACT 1. An unappealed July 1980 rating decision denied the claim of entitlement to recognition of H.J.C. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 and new and material evidence was not received prior to expiration of the appeal period. 2. Evidence received since July 1980 is new and material and relates to an unestablished fact necessary to reopen the claim. 3. Prior to attaining the age of 18, H.J.C.'s mild mental retardation rendered him permanently incapable of self-support. CONCLUSION OF LAW The criteria for recognition of H.J.C. as a "helpless child" of the Veteran have 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 December 1948 to June 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of a Department of Veterans Affairs (VA) Regional Office (RO. Entitlement to recognition of H.C. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18. New and Material The Veteran seeks to reopen his previously denied claim of entitlement to recognition of H.J.C. as a helpless child, which was originally denied in a July 1980 rating decision. The Veteran did not initiate an appeal from this determination and new and material evidence was not received within one year. Under these circumstances, the Board must find that the July 1980 rating decision became final. 38 U.S.C. § 7105 (c); 38. C.F.R. 3.104, 20.302, 20.1103. Evidence received since July 1980 and relevant to reopening the claim includes a 1984 record from a private physician that provides a more comprehensive medical history of the Veteran’s son than documented previously, and which indicates that H.J.C. was disabled prior to attaining the age of 18. As a result, the Board finds that this evidence is new and material, because it is neither cumulative nor redundant, relates to an unestablished fact, and raises the possibility of substantiating the claim. Accordingly, the claims of service connection for hypertension is reopened. 38 C.F.R. § 3.156 (a) In light of the above, the claim of entitlement to recognition of H.J.C. as the helpless child of the Veteran is reopened. Based upon a review of the record, the Board finds that the evidence demonstrates H.J.C. was rendered helpless prior to the age of 18 due to permanent incapacity for self-support. 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 Court of Appeals for Veterans Claims 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 her18th 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 Veteran's son, H.J.C. was born in July 1954, thus he would have attained the age of 18 in July 1972. The evidence of record establishes that he was a "helpless child" prior to the age of 18 due to his disabilities. Medical records pertaining to H.J.C. demonstrate that he currently suffers from mental retardation stemming from a childhood attack of meningitis in approximately 1955. See i.e. October 1960 University of Virginia Hospital pediatrician correspondence (“I don’t think there is any question of doubt that your child is retarded and that it is very likely associated with his previous attack of meningitis”); September 2015 Carilion Clinic (“61 year old…diagnosed with mild mental cognitive deficiencies…lives with his mother and father.”) Concerning his education and employability, letters in support of the Veteran’s claim demonstrate that prior to age 18, H.J.C. was enrolled in special education classes and following his schooling worked at sheltered employment for minimal pay. See April 1980 Fairfield Elementary School correspondence (“special education class…1961 to 1965”); see also April 1980 Valley Workshops Inc. correspondence (“(motto) helping the handicap help themselves…[H.J.C] has been a client…since December 15, 1970…variety of jobs in the workshop…average amount is $39.62 grossed per month”). Additionally, numerous letters in support from family members and friends corroborate the above evidence and indicate that H.J.C. relies on the Veteran for support. See i.e. April 1980 D.D. correspondence (“was in special education classes from 7 to 16 years…receives a small salary…depends entirely on his father for support”); April 1980 J.C. correspondence (“known for the past 20 years…they have a son, now 25 years old, who is mentally and physically disabled…he went to special education classes…until 16 years old…now works at the Valley work shop…pay is small….incapable of taking care of himself”); June 2017 Daughter correspondence (“[H.J.C.] continues to live at home with [Veteran] as he has since birth”). (Continued on the next page)   The record also demonstrates that H.J.C. underwent a physical examination in July 1984, which findings further support the Veteran’s claim. The July 1984 examiner recounted an onset of mental retardation (MR) stemming from a 1955 occurrence of meningitis. The examiner noted an approximate IQ of 45 and that he attended special education classes until the age of 16 when he began working at the Valley Workshop. Impression of “obvious mild to moderate MR” was assessed. Given that H.J.C.’s disabilities clearly existed prior to his becoming 18 and rendered him unable to sustain anything more than sheltered employment, the evidence supports a finding that he was permanently incapable of self-support prior to the age of 18. Therefore, the Board finds that the Veteran's son H.J.C. meets the definition of a helpless child for purposes of VA benefits. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.