Citation Nr: 21012213 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 20-29 417 DATE: March 3, 2021 ORDER Recognition of C.W. as the dependent child of the Veteran based on permanent incapacity for self-support prior to attaining the age of 18 is granted. FINDING OF FACT The evidence of record demonstrates that C.W., the Veteran’s son, was permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria for recognition of C.W. as the dependent child of the Veteran are met. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.4, 3.57, 3.315, 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1983 to January 1988 and July 2004 to May 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran’s claims file currently resides with the Roanoke, Virginia RO. In December 2020, the Veteran testified at a Board hearing. A transcript of the hearing is of record. Turning to the merits of the Veteran’s appeal, if a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling, an additional amount of compensation may be payable for a spouse, child, and/or dependent parent. See 38 C.F.R. § 3.4(b). In this case, the Veteran has been in receipt of at least a 30 percent combined disability rating for his service-connected disabilities since August 2005. Accordingly, the Board finds that the 30 percent eligibility threshold established in 38 C.F.R. § 3.4(b) has been satisfied. Regarding the proposed dependent in the instant case, C.W., VA received a VA Form 21-686c, Declaration of Status of Dependents, completed by the Veteran in December 2017. In this form, the Veteran identified C.W. as an unmarried, dependent child due to serious disability. A child of a veteran generally does not qualify as a dependent for VA purposes once he or she attains 18 years of age. See 38 C.F.R. § 3.57(a). In this case, the record indicates that C.W. was born on August [REDACTED], 1997, and turned 18 on August [REDACTED], 2015, seemingly making him ineligible as a dependent for VA compensation purposes. See January 2018 VA Form 21-686c. An adult child of a veteran, however, may be considered a “child” for dependency purposes if, after reaching the age of 18, he or she is unmarried and (1) was permanently incapable of self-support by reason of mental or physical defect before reaching age 18—a “helpless child”; or (2) is 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); 38 C.F.R. §§ 3.57, 3.315(a), 3.356. 38 C.F.R. § 3.356 provides several factors to consider when determining whether a child under the age of 18 permanently was incapable of self support. Those factors are as follows: (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 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. (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. Lastly, the Board notes that the Court of Appeals for Veterans Claims (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 child’s condition subsequent to his or her 18th birthday is not for consideration. If a finding is made that a child was permanently incapable of self-support as of his or her 18th birthday, however, then evidence of the child’s subsequent condition becomes relevant for the second step of the analysis, that is, whether there is improvement sufficient to render the child capable of self-support. Id. If the child is shown to be capable of self-support at age 18, VA is required to proceed no further. Id. After reviewing the evidence of record, the Board finds that C.W. was incapable of supporting himself prior to August 2015 such that he qualifies as a helpless child for dependency purposes. Accordingly, the Veteran’s appeal is granted. In support of this determination, the Board first notes that, in July 2015, medical providers at Children’s Neurological Services diagnosed C.W. with autism. Additionally, the providers indicated that, for educational purposes, C.W. required the creation of an individualized education program (IEP). Although C.W. was provided this diagnosis about only 1 month prior to his 18th birthday, the Veteran testified at the December 2020 Board hearing that he noticed that C.W. displayed symptoms ever since he was a young child. See Hearing Tr. at 8-9. The Veteran explained that there was some disagreement between himself and his spouse about addressing C.W.’s behavior; however, once C.W. was school-aged they then sought medical and educational assistance. Id. Consistent with this testimony, Dr. Jordan-Sayles from the Bon Secours Medical Group stated in March 2020 that C.W. was diagnosed with autism spectrum disorder in 2015 following an “extensive work up” by a pediatric neurologist. Accordingly, the Board finds the Veteran’s December 2020 testimony regarding the onset of C.W.’s autism to be credible and, thus, the Board concludes that C.W. first began displaying symptoms of autism prior to his 18th birthday. Turning from the general issue of the onset of C.W.’s disability, the Board notes that there is limited information in the claims file regarding the specific question of C.W.’s capacity for self-support prior. In her March 2020 letter, Dr. Jordan-Sayles relayed that, as of July 2015, C.W. was deemed permanently incapable of self-support by reason of his autism spectrum disorder diagnosis. However, Dr. Jordan-Sayles provided no rationale for this conclusion. Additionally, determining whether an individual is capable of self-support by the age of 18 is ultimately an adjudicative determination and not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Separate from Dr. Jordan-Sayles’ March 2020 letter, the Veteran testified that, as of December 2020, C.W. worked about 4 days a week, 7 hours a day, at a newspaper. See Hearting Tr. at 5-6. 38 C.F.R. § 3.356(b)(1) states that the fact that an individual “is earning his or her own support” is “prima facie evidence that he or she is not incapable of self-support.” Thus, at first blush it appears that the Board must deny the Veteran’s appeal as C.W. is capable of self-support. 38 C.F.R. § 3.356(b)(2) and (4), however, provide avenues to rebut prima facie findings made under 38 C.F.R. § 3.356(b)(1) if the evidence of record demonstrates that the employment at issue (A) was only casual, intermittent, a tryout, unsuccessful, or terminated after a short period by reason of disability; or (B) was only provided due to sympathetic or charitable considerations and which involve no actual or substantial rendition of services. The Board finds 38 C.F.R. § 3.356(b)(4) to be applicable such that the prima facie case regarding C.W.’s ability to support himself is rebutted in the instant case. Specifically, at the December 2020 Board hearing, the Veteran testified that C.W. was provided employment through a program for individuals with disabilities. See Hearing Tr. at 5. The Veteran explained that the program matched C.W. with a position that considered his autism diagnosis, his abilities, and his need to work a limited schedule. Id. at 5-6. The Veteran elaborated that the position did not pay C.W. well enough for C.W. to support himself financially. Id. at 7. Rather, the Veteran explained that the position was more of an opportunity for C.W. to be in public with others and work on his socialization skills. Id. From the Veteran’s December 2020 testimony—which the Board finds to be credible—the Board concludes that the C.W.’s employment qualifies as employment afforded due to sympathetic considerations. Under 38 C.F.R. § 3.356(b)(4), such employment rebuts the prima facie case established by 38 C.F.R. § 3.356(b)(1) and, thus, is not a bar to establishing C.W. as a dependent adult child of the Veteran. Lastly, circling back to the issue of the onset of C.W.’s autism spectrum disorder, the Board must evaluate whether the symptoms which affect C.W.’s capacity to support himself were present prior to his 18th birthday. In this vein, the Board notes that the Veteran testified in December 2020 that C.W. is not communicative, that these symptoms affect his functioning, and that these symptoms were present when C.W. was a child. See Board Hearing Tr. at 9. As an example, the Veteran described incidents where C.W. experienced ingrown toenails on his feet but would not tell anyone this problem. Id. at 8-9. The Veteran stated that when C.W. finally saw a doctor, his feet were wrapped in bandages like a tourniquet and that the Veteran attempted to discuss with C.W. the importance of maintaining personal health. Id. The Veteran concluded the hearing by testifying that C.W.’s behavior and lack of ability to communicate had been present his entire life. Id. at 9-10. From this lay testimony, the Board concludes that symptoms and affects of C.W.’s autism spectrum disorder in the years following his 18th birthday were consistent with the symptoms impacting his capabilities prior to his 18th birthday. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that C.W was permanently incapable of self-support by reason of mental or physical defect before reaching age 18. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.315(a), 3.356. Accordingly, the Board recognizes C.W. as one of the Veteran’s dependents due to “helpless child” status and grants the Veteran’s appeal. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.