Citation Nr: 21067286 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-23 235 DATE: November 3, 2021 ORDER Entitlement to recognition of the appellant as a helpless child based on permanent incapacity for self-support established before the age of 18 is denied. FINDING OF FACT The weight of the probative evidence does not support a finding that the appellant was permanently incapable of self-support by reason of mental or physical condition prior to attaining the age of 18 years. CONCLUSION OF LAW The criteria to establish recognition of the appellant as a helpless child for VA death pension benefits have not been met. 38 U.S.C. § 101 (4) (2018); 38 C.F.R. §§ 3.57, 3.159, 3.356 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran died in November 2016. The Agency of Original Jurisdiction (AOJ) determined the appellant is the Veteran's daughter. See October 2017 Deferred Rating Decision. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision. The appellant presented testimony before the Board in February 2021. Recognition of the Appellant as a Helpless Child The appellant seeks recognition as a helpless child on the basis of permanent incapacity for self-support prior to the age of 18. Specifically, she contends through statements and testimony that she was disabled as child as a result of mental health issues, to include "attention span" problems. BVA Transcript at 5. In order to establish such entitlement, it must be shown that the child was permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. 38 C.F.R. § 3.356 (a). Rating determinations regarding helpless child status are made solely on the basis of whether the child is permanently incapable of self-support through his or her own efforts by reason of physical or mental defects. The question of permanent incapacity for self-support is one of fact for determination by the rating agency on competent evidence of record in the individual case. Id. A "child" for VA benefits purposes must be unmarried and must be either 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. The focus of analysis is on the child's condition at the time of her 18th birthday. It is that condition which determines whether entitlement to the status of "child" should be granted. Dobson v. Brown, 4 Vet. App. 443 (1993). Turning to the facts of the case, the evidence of record shows that the appellant was born in September 1986 and turned 18 in September 2004. Upon review of the record, the evidence does not demonstrate that the appellant was permanently incapable of self-support by September 2004, when she reached the age of 18. Records from the Social Security Administration (SSA) show the appellant received benefits as a dependent child of the Veteran/wage earner prior to turning 18 when her benefits were terminated. She filed a claim for supplemental security income in September 2012, alleging onset date of disability as of March 2010. She was adjudged disabled as of date of claim in September 2012; however, these records do not indicate that she was disabled prior to age 18. The Board notes that despite testimony from the appellant indicating she was treated for attention span problems as a child, the disability determination explanation shows attention deficit disorder was diagnosed in 2011. Attempts to obtain medical records from Dr. MG resulted in a negative response. See response dated in January 2018. Two attempts were made to obtain medical records from Dr. JSG in November 2017 and December 2017 with no response. The appellant was notified that records from Dr. JSG were requested, but ultimately it was her responsibility to provide such evidence. See November 2017 letter. The Board would note the appellant indicated that she sought treatment with Dr. JSG in 2012 on the authorization form; this would have been after the appellant turned 18. Any further attempts to obtain these records would be futile. 38 C.F.R. § 3.159. The Board has also considered the appellant's personal assertions. While she is competent to describe her physical and mental symptoms, the determination as to whether she was permanently incapable of self-support by reason of mental or physical defect by age 18, under VA standards, is medical in nature and thus not capable of lay observation. In sum, the Board finds that the weight of the evidence of record is against the finding that the appellant became permanently incapable of self-support by reason of mental or physical defect before reaching the age of 18. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.