Citation Nr: 21006362
Decision Date: 02/03/21	Archive Date: 02/03/21

DOCKET NO. 08-23 959
DATE: February 3, 2021

ORDER

Entitlement to recognition of the Veteran’s son, B.T., as a helpless child on the basis of permanent incapacity for self-support before attaining the age of 18, for additional compensation purposes is denied.

FINDING OF FACT

At no point during the period on appeal has the Veteran been in receipt of a disability rating of at least 30 percent or more.

CONCLUSION OF LAW

The criteria for entitlement to recognition of the Veteran’s son, B.T., as a helpless child on the basis of permanent incapacity for self-support before attaining the age of 18, for additional compensation purposes have not been met.  38 U.S.C. §§ 101 (4) (A), 5103, 5103A, 5107; 38 C.F.R. §§ 3.4, 3.57, 3.102, 3.159, 3.315.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1963 to June 1967.  This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

This matter was last before the Board in January 2020 where it was remanded for the purpose of awaiting the adjudication of the intertwined issue of entitlement to service connection for right ear hearing loss.  A November 2020 rating decision awarded service connection for bilateral hearing loss, thus the appeal for right ear hearing loss is no longer before the Board. 

Entitlement to recognition of the Veteran’s son, B.T., as a helpless child on the basis of permanent incapacity for self-support before attaining the age of 18.

VA law and regulations provide that veterans having a combined disability rating of 30 percent or more may be entitled to additional compensation for a child based on permanent incapacity for self-support. See 38U.S.C. §1115;38C.F.R. §§3.4(b)(2), 3.356.

As noted above, service connection for right ear hearing loss was awarded in a November 2020 rating decision.  However, despite this award and the fact that service connection is currently in effect for numerous other disabilities; the Veteran’s combined overall rating has been no more than 20 percent at any point during the period on appeal.  See January 2021 Rating Decision code sheet (“Combined Evaluation for Compensation…10% from 2/15/2007…20% from 6/25/2009…10% from 4/11/2014”)  As such, the Veteran does not meet the threshold criteria of being in receipt of a disability rating of at least 30 percent under 38 C.F.R. § 3.4(b)(2).

In light of the above, the Board is unable to grant the benefit sought by the Veteran.  The legal authority pertaining to recognition as a helpless child is prescribed by Congress and implemented via regulations enacted by VA, and neither the AOJ nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.101 (a).  Significantly, VA can only pay benefits that are authorized by law.  See McTighe v. Brown, 7 Vet. App. 29, 30 (1994). 

Under the circumstances of this case, the claim for recognition of B.T. as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18, for additional compensation purposes must be denied.

 

 

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.