Citation Nr: 21064858 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-23 157A DATE: October 21, 2021 ORDER Recognition of Z.C. as the helpless child of the Veteran based on permanent incapacity for self-support prior to attaining the age of 18 is granted. FINDING OF FACT Z.C. has been shown to have been permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria are met for recognition of Z.C. as a "helpless child" of the Veteran. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty in the military from May 1994 to May 1997. This appeal to the Board of Veterans' Appeals (Board) is from a March 2016 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran recently testified in support of this claim during an August 2021 "virtual" teleconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In deciding this appeal, the Board has limited its discussion to the most relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the claim the Veteran raised himself or that were 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 Z.C. as the helpless child of the Veteran based on permanent incapacity for self-support prior to attaining the age of 18 The Veteran contends that his daughter, Z.C., was incapable of self-support prior to attaining the age of 18. During his recent hearing before this Board, and in his other pleadings submitted in support of his appeal, he provided extensive discussion of why this is true. For purposes of determining eligibility to be considered a dependent, 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 based on 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 that 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. By way of background, the Veteran's daughter, Z.C., attained the age of 18 in February 2012. The Veteran contends that Z.C. 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 Z.C. 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. The record reflects that Z.C. has had psychotic symptoms since childhood and that such symptoms were continuous throughout adolescence and into adulthood. See May 2019 Psychological Evaluation Report. These symptoms eventually were diagnosed as a severe presentation of schizophrenia, resulting in significant disturbances in relational, academic, employment, and independent living functioning. Id. She has a history of impulsive and self-injurious behaviors when she becomes highly distressed, as well as auditory and visual hallucinations, delusional and/or problematic thinking patterns, persecutory ideation, bizarre sensory and somatic experiences, intense anxiety, emotional turmoil, depressed mood, ineffective coping strategies, and difficulty concentrating. Id. During the psychological evaluation, Z.C. endorsed frequent mental confusion, displayed struggles to differentiate reality and peculiar experiences, pervasive beliefs about being followed or influenced, and low self-efficacy in ability to control emotions. Id. Z.C. was in special education classes throughout her schooling and was diagnosed with a learning disability by her school. See November 2013 Report based on Psychoeducational Evaluation with Neuropsychologist Testing. She had been seeing a psychologist since 2010 and had been diagnosed with schizoaffective disorder. Id. The evaluating psychologist, Dr. J.Z., opined that Z.C. is likely to have difficulty in any educational program or vocation if she is required to utilize reading or mathematics skills, and that she has significant problems socially which have the potential to interfere with vocational progress. Id. In June 2018, the Veteran submitted a January 2018 human resources letter indicating that C.Z. had been approved by the Army Benefits Center Civilian to remain an eligible family member as a child incapable of self-support on the Veteran's federal benefits on a permanent basis, based on a finding that C.Z. was incapable of self-support due to a disability which existed before she attained the age of 22 years. In the May 2018 VA Form 9, the Veteran stated that Z.C. has difficulties in separating fact from fiction and real life from daydreams. The Veteran stated that the state vocational rehabilitation program had discharged Z.C. from the program because they could not find employment for her due to the instability of her mental conditions, and the program recommended she apply for disability benefits from the Social Security Administration (SSA). See May 2018 VA Form 9. The Veteran further stated that, at the time Z.C. finished high school, her actual educational level was approximately that of a third grade student, and she still struggles with comprehension, cannot multiply and divide without a calculator, and has difficulty with addition, subtraction, reading, and writing. Id. In December 2019, the Veteran submitted a copy of a letter from the SSA indicating that Z.C. receives Supplemental Security Income payments because she is disabled under SSA rules. During the August 2021 Board hearing, the Veteran testified that Z.C. was diagnosed as mildly mentally retarded at the age of three. The Veteran further testified that after Z.C. graduated from high school she entered a state vocational program to see if she could work, but she was discharged from the program after two years because they could not get her any employment because of her mental disabilities. The Veteran testified that Z.C. cannot live on her own or support herself, to the extent that she is not allowed to do certain things like cook for herself, due to concerns that she would accidentally burn down the house. The Veteran also testified that Z.C.'s attempts at working through the state vocational program caused her symptoms to worsen to the point that she had a mental breakdown and her psychiatrist and counselor advised her to stop working. The Board finds the Veteran's testimony and both the June 2013 and May 2019 psychological evaluations to be highly probative evidence that Z.C.'s disabilities caused significant functional impairment and rendered her helpless prior to her attaining the age of 18. Moreover, given that her disabilities clearly predated her turning 18 and rendered her unable to sustain employment, the evidence supports finding that she was permanently incapable of self-support prior to the age of 18. To the extent the record indicates that she engaged in a state vocational program and attempted employment through this program, any employment was only casual, intermittent, tryout, unsuccessful, or terminated after only short time because of her disability. Therefore, that cannot be considered as rebutting permanent incapability of self-support otherwise established. Therefore, the Board finds that the Veteran's daughter, Z.C., meets the definition of a helpless child for purposes of VA benefits. Thus, this appeal for this designation is granted. KEITH W. ALLEN 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.