Citation Nr: 21008170 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-24 378 DATE: February 11, 2021 ORDER Entitlement to recognition of J.R., as a “helpless” child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years is granted. FINDING OF FACT The Veteran’s son, J.R., was permanently incapable of self-support by reason of a mental or physical condition prior to attaining the age of 18 years. CONCLUSION OF LAW The criteria to establish recognition of the Veteran’s son, J.R., as a helpless child for purposes of Department of Veterans Affairs (VA) compensation have been met. 38 U.S.C. § 101(4)(A), 5107; 38 C.F.R. §§ 3.57, 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to October 1970, to include service in the Republic of Vietnam. The Board previously remanded this matter in June 2018 to obtain any additional necessary documentation because of the Agency of Original Jurisdiction’s (AOJ) failure to completely rebuild the Veteran’s file after losing the file. The Board notes that the J.R. is in receipt of Social Security Administration (SSA) disability benefits, however, given that the Board is granting the Veteran’s claim for entitlement to recognition of J.R. as a “helpless” child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18, the full benefits sought on appeal, the Veteran is not prejudiced by the absence of the SSA records. The Board notes that the issues of entitlement to service connection for a heart disability, a right leg disability, urinary condition, bilateral feet disability, an acquired psychiatric disorder, bilateral lower extremity peripheral neuropathy, and entitlement to an initial increased rating in excess of 10 percent for Type II diabetes mellitus will be subject of a separate Board appellate document. The Veteran contends that J.R. is rendered permanently incapable of self-support prior to his 18th birthday, and hence is entitled to helpless child status. The record reflects that the Veteran’s son, J.R. was born in January 1980, and therefore his 18th birthday was in January 1998. 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 as of his or her 18th birthday. 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. Employment which 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. See 38 C.F.R. § 3.356(b)(2). However, 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 In a March 2011 VA Form 21-686c, Declaration of Status of Dependents, the Veteran indicated J.A. is his biological son who was born in January 1980 and is seriously disabled. The Veteran indicated that J.A. lives with him. The records reflect a September 1998 medical letter from Dr. Sundaram, the Director of Neurophysiology/Epilepsy of a private hospital. The physician noted J.R. was 18 years old who started having seizures probably when he was 6 years or 7 years old, but the diagnosis was made when he was 10 years old. She noted J.R.’s seizures occur without warning, and he appears to daydream, and does not respond for approximately 1 minute. She noted that during a seizure, his head turns to one side, he fumbles with his hands, and his speech is jumbled. She also noted he has several attacks a day up to only two or three attacks a month. She explained he started Depakote eight years ago and is supposed to be on 500mg and that he started Neurontin two years ago. She noted that approximately 10 days ago, he ran out of both medications and had a grand mal seizure on the day of the clinical visit. She noted there was no history of febrile seizure, however, J.R. had persistent fetal circulation at birth and he was apparently kept at the hospital for 2 weeks. She explained that his motor skills have been delayed and that he did poorly in school but managed to complete grade 12. On examination, the physician noted he was somewhat dull and immature. He had slight tremors of both hands, and his gait was somewhat ataxic. Systemic examination was normal. She concluded that his history suggests partial seizures and that the electroencephalogram (EEG) revealed epileptiform discharges in either temporal region, especially left. She noted that a single electrographic seizure occurred with questionable left temporal onset. In view of the EEG findings, she advised concentration on Neurontin, rather than Depakote, by maximizing Neurontin and slightly reduce Depakote medication. In a December 2006 statement, the Veteran indicated that J.R. is permanently disabled and is under his supervision. He stated J.R. engaged in part-time employment in accordance with his association and treatment for a state rehabilitation service, and that J.R. can be claimed as his dependent. In December 2006, Dr. Sundaram provided an opinion that J.R. is permanently and totally disabled due to his epilepsy. A February 2019 private treatment record noted J.R. continued to take medication for his epilepsy disorder. An August 2019 medical letter from a private clinician noted that J.R. was treated at the medical clinic since adolescence for seizures, hypertension, dyslipidemia, and has mental challenges and delays that render him disabled. She explained that the prognosis of his conditions is poor; thereby resulting in permanent mental and physical disability. In an October 2019 VA treatment record, the Veteran reported that he lives with his wife and special needs child. An October 2020 letter from a private behavioral health services clinic indicated J.R. had been receiving outpatient care due to his disabling condition since October 2014. In a November 2020 statement, the Veteran indicated that J.R. had been entitled to supplemental income from the SSA since he was 10 years old, when he filed the claim for SSA benefits. The Veteran stated that he was the payee for J.R.’s SSA benefits. Later that month, an SSA inquiry indicated that J.R. was in receipt of SSA disability benefits and that the date of initial entitlement was December 2002. It also confirmed that the payee was the Veteran and indicated that J.R. resided at the Veteran’s address. Based on the foregoing, the Board finds that the evidence shows that the Veteran’s son, J.R., has disabilities, permanent in nature, and prior to the age of 18. Here, although records prior to J.R.’s18 birthday is not of record, the record from September 1998, when J.R. was 18 years old are of record and indicate he was diagnosed with a seizure disorder, epilepsy, prior to his 18th birthday. Specifically, the September 1998 treatment record noted J.R. started having seizures when he was 6 years or 7 years old, and that he was formally diagnosed when he was 10 years old. Dr. Sundaram described J.R.’s seizures occurring without warning and that he does not respond for approximately 1 minute, his head turns to one side, he fumbles with his hands, and his speech is jumbled. She noted the seizures occurred frequently ranging from several attacks a day up to only two or three attacks a month. The December 2006 letter from Dr. Sundaram opined that the Veteran’s seizure disorder, diagnosed prior to his 18th birthday, rendered him permanently and totally disabled. Similarly, the August 2019 medical letter from a private clinician also determined that J.R. was disabled due to permanent mental and physical disabilities, including seizures and mental challenges and delays. The October 2020 letter from the behavioral services medical clinic also indicated J.R. is disabled. The Board also notes that although the Veteran indicated that J.R. engaged in some part-time employment in 2006, however, the Veteran stated that such employment was under the guidance of a state rehabilitative service. Thus, this intermittent employment should not be considered as rebutting permanent incapability of self-support. The evidence reflects J.R.’s seizures occurred prior to his 18th birthday and that the disability prevents him from obtaining sufficient income for reasonable support, as indicated by his symptoms described in the September 1998 private treatment record, and continuous dependence on long term treatment and medication. As such, the Board finds that J.R. was permanently incapable of self-support due to a physical or mental condition prior to the age of 18. The evidence also reflects statements from the Veteran describing J.R.’s medical history with an onset prior to his 18th birthday. The medical evidence and lay statement indicate J.R.’s disabilities have been a continuous obstacle to self-support and that he is unable to be gainfully employed. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In short, the Board finds that J.R. was permanently incapable of self-support due to a physical or mental condition prior to the age of 18. These statements, when considered with the medical evidence of record in close proximity to when J.R. was 18, provide competent and credible evidence as to J.R.’s capacity for self-support prior to his 18th birthday. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.