Citation Nr: 21007278 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-05 152 DATE: February 9, 2021 ORDER Entitlement to recognition of Z.G. 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 Prior to attaining the age of 18, Z.G.'s psychological symptoms rendered him permanently incapable of self-support. CONCLUSION OF LAW The criteria for recognition of Z.G. 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 had active service from June 1978 to June 1981. Z.G. is his son. This appeal comes before the Board of Veterans’ Appeals (Board) from a January 2011 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2016, the Veteran, his wife, and Z. G. testified ata Board videoconference hearing before a Veterans Law Judge (VLJ) other than the undersigned. That VLJ, however, is no longer employed at the Board, and in March 2019, the Veteran declined the opportunity to attend a new Board hearing. The Board denied this appeal in November 2017. The Veteran challenged the decision to the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Remand (JMR) in December 2018; thus, remanding this matter to the Board for action consistent with the terms of the JMR. This matter was last remanded in June 2019 for the purpose of procuring medical records for Z.G., rather than for the Veteran which were mistakenly obtained. Entitlement to recognition of Z.G. as the “helpless child” of the Veteran on the basis of permanent incapacity for 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. 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 Board finds that a preponderance of the evidence is supports the claim of entitlement to recognition of Z.G. as the "helpless" child of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18. In coming to this determination, the Board finds significant that at the time Z.G. attained the age of 18, he had attended special education school and the difficulties noted by his teachers transferred to an inability to secure employment due to psychological symptoms which have continued through to the present. See August 2010 Special Education Case Manager report (“has difficulty completing tasks…trouble retaining information and building on prior knowledge…difficulty concentrating…shies away from engaging…rather than progressing through high school it appears that [Z.G.] has digressed…lacks motivation and direction for his future”); Compare October 2010 Texas Rehabilitation Commission Psychological Evaluation (“18-year old…patient feels very paranoid and is antisocial…great amounts of anxiety and insomnia…has been trying to get a job…does not get hired…unable to socialize”) with June 2017 Health Texas Progress Note (“Having anxiety – feels like the world is going to collapse all the time…when people talking fast, etc. he starts feeling the world is going to cave in”). Additionally, while not dispositive but highly probative, Social Security Administration (SSA) records reflect that he was in receipt of disability benefits from September 30, 2009 due to anxiety and ADD/ADHD. The SSA Functional Report-Adult Section A-General Information reflects in part: that he lived in a house by himself (yet proximate to his parents). He further stated that his mother or father occasionally spent the night when he suffered from anxiety. He took care of his dog, cleaned the yard, and mowed the lawn. He has difficulty sleeping and does not like to be around people. He stated that he washed his hair twice a week (and that if his parents had lived with him he would wash it more often). He goes out alone and shops via in stores or by computer. The Board acknowledges the negative conclusions proffered by the VA examiners. While probative, the underlying question is of a legal nature and the Board has determined that the most probative evidence of record demonstrates that Z.G. was rendered helpless prior to turning the age of 18 due to his psychological disabilities. Significantly, the Board notes that while the VA examiners concluded that Z.G. is not helpless, they nevertheless noted the deleterious impact of his psychological disabilities on his ability to function. See i.e. January 2017 VA examination (“his main diagnosis seems to be Schizoid Personality Disorder & ADHD and he avoids people however these diagnosis do not deem him to be permanently incapable of self-support”); December 2020 VA examination (“He undoubtedly has some limitations, but is cognitively and physically able to work in a job that has demands according to his low average IQ.”) Given that Z.G.’s disabilities clearly existed prior to his becoming 18 and rendered him unable to sustain 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, Z.G., 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.