Citation Nr: 21063735 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-14 375 DATE: October 15, 2021 ORDER Recognition of D.H. 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. FINDING OF FACT D.H. has 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 D.H. as a "helpless child" of the Veteran have been met. 38 U.S.C. § 101(4)(A) (2012); 38 C.F.R. § 3.356 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to August 1968. The appellant is the Veteran's spouse, who has been appointed the Veteran's guardian for VA purposes and is pursuing this claim on behalf of the Veteran. See June 2013 rating decision (finding the Veteran incompetent); September 2013 VA Form 21-555, Certificate of Legal Capacity to Receive and Disburse Benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the September 2020 substantive appeal, the appellant requested a Board hearing. However, in January 2021, the appellant withdrew her request for a Board hearing. The Board notes that the Veteran's March 2013 VA Form 21-686c, Declaration of Status of Dependents, also appears to include an unadjudicated claim for entitlement to recognition of the Veteran's son, G.H., as the helpless child of the Veteran. However, it does not appear that this March 2013 claim has been adjudicated by the RO in the first instance; therefore, the Board does not have jurisdiction over this claim. This unadjudicated March 2013 claim for entitlement to recognition of the Veteran's son, G.H., as the helpless child of the Veteran is REFERRED for initial consideration by the RO. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to recognition of D.H. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 The appellant contends that the Veteran's daughter, D.H., was rendered incapable of self-support prior to attaining the age of 18. 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. See 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. By way of background, the Veteran's daughter, D.H., attained the age of 18 in October 2013. The appellant contends that D.H. constitutes a helpless child because she became incapable of self-support prior to the age of 18 due to her disabilities. Based on the evidence of record, the Board finds that D.H. was rendered incapable of self-support prior to attaining the age of 18. The evidence of record establishes that she was a "helpless child" prior to the age of 18 due to her disabilities. In a January 2004 letter, a pediatric neurologist, Dr. G.T., stated that D.H. had difficulty since early childhood with poor attention, distractibility, high activity, and poor impulse control. She also had violent mood swings, which occurred with no apparent provocation. She was highly oppositional and defiant, and constantly battled with her parents. She was described as aggressive and "mean." She did harmful things to the family animals, and appeared to enjoy doing so. She would be mean and aggressive towards here peers, with no apparent remorse. Although she was described as quite bright, she was not learning in school because of her short attention span, distractibility, and refusal to do work. On occasion, she may do very good work and appear to learn, only to do poorly the following day, with no evidence of her previously learned material. She was described as having difficulty in school, and then becoming out of control at home. Her behavior was to the point that her parents and brother were having great difficulty living with her. On neurological examination, D.H. was alert and mostly cooperative. However, she was obviously oppositional towards her parents and tended to perseverate. D.H.'s hands were bitten, and her parents stated that she tended to bite her own hands and nails. Dr. G.T. opined that D.H. has a neurobehavior disorder, which is most likely genetic. Dr. G.T. further opined that D.H. has ADHD, as well as ODD and a mood disorder. In an October 2004 letter, Dr. G.T. indicated that D.H. was reevaluated for a non-progressive neurodevelopmental disorder with ADHD, oppositional defiant disorder (ODD), and probable mood disorder, in the context of congenital hearing impairment. Numerous psychiatric medications had been prescribed, but none had more than a minimal benefit. D.H. was being treated for hyperactivity, impulsivity, distractibility, mood swings, and aggression. Her parents had difficulty controlling her, and she was often aggressive towards the family animals. A November 2007 psychiatric evaluation report indicated that D.H. had been diagnosed with attention deficit hyperactivity disorder (ADHD) and had attended a school for the deaf. She was having nightmares and claustrophobia, and had an anxious affect. She was also diagnosed with obsessive compulsive disorder, Tourette's, and posttraumatic stress disorder (PTSD). February 2002 and April 2012 audiological evaluation reports indicated that D.H. had severe to profound bilateral hearing loss. In a November 2012 letter, D.H.'s treating physician indicated that D.H. had been diagnosed with systemic lupus erythematosus (SLE), lupus nephritis, and lupus-related arthritis. The treating physician indicated that D.H.'s condition was severe and would affect her development in the future. In the September 2020 informal hearing presentation, the appellant's representative indicated that D.H. receives social security through the Veteran because she is disabled. The representative also stated that the appellant indicated that D.H. graduated with a special high school diploma, stayed in school until her 19th birthday, has limited reading and writing schools, does not understand the concept of money, and is not capable of making rational decisions. The representative also reported that D.H. was part of a vocational training program and was unable to keep that position. Given that D.H.'s disabilities clearly existed prior to her becoming 18 and rendered her unable to sustain employment, the evidence supports a finding that she was permanently incapable of self-support prior to the age of 18. Therefore, the Board finds that the Veteran's daughter, D.H., meets the definition of a helpless child for purposes of VA benefits. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.