Citation Nr: 21015139 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-40 126 DATE: March 16, 2021 ORDER Entitlement to recognition of S.S. as a “helpless child” of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18 is granted. FINDING OF FACT The Veteran’s daughter, S.S. was permanently incapable of self-support by reason of a physical condition prior to attaining the age of 18 years old. CONCLUSION OF LAW The criteria to establish recognition of the Veteran’s daughter, S.S., as a helpless child for purposes of additional 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 active duty from January 1955 to May 1958. The Veteran died in March 2014. The appellant is his adult daughter. In January 2019, the appellant testified during a Board hearing before the undersigned Veterans Law Judge at the VA Regional Office (RO). A transcript of that hearing is of record. The appellant submitted private treatment records and opinions at the hearing and at that time, she expressly waived RO consideration of this evidence in the first instance; this waiver is documented in the Board hearing transcript. See 38 C.F.R. §§ 20.800; 20.1304(c). In October 2019 correspondence, the appellant’s representative submitted a written waiver of initial RO consideration of submitted evidence, to include consideration of all evidence submitted after the statement of the case was issued. The Board notes that the appellant was scheduled for an additional hearing in July 2020 in response to the appellant’s representative’s October 2019 letter that mistakenly indicated that the appellant was never scheduled for a Board hearing. In an August 2020 telephone call, the appellant indicated that she did not want an additional hearing. Therefore, the Board will proceed with the appeal. Analysis The appellant contends that she qualifies for recognition as a helpless child on the basis of permanent incapacity of self-support prior to attaining age 18. 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. 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. See 38 C.F.R. § 3.356. The principal factors for consideration are: (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. Id. The Court has held that, in “helpless child” cases, the focus must be on the claimant’s condition at the time of his 18th birthday. 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 18th birthday is not for consideration. If a finding is made that a claimant was permanently incapable of self-support as of his 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 record indicates that the appellant, S.S., was born in November 1969 and reached age 18 in November 1987. A birth certificate confirms that the Veteran is the appellant’s biological father. Turning to the evidence, 1982 to 1983 private treatment records note kyphosis scoliosis with severe cavovarus feet, history of feet operations, which were not bothering her at the time. She had no reflexes in the extremities, was able to walk on her toes, and able to heel walk with some difficulty, mostly secondary to balance and her foot problems. A September 1984 private treatment record notes the appellant had an average intelligence. She was in the 9th grade and was being kept back a year because of lack of interest in schoolwork and poor attendance. The physician concluded it was not because of medical problems. He noted developmental milestones, mainly walking, talking, and being toilet trained were all delayed. She walked at 2 years old, did not speak until 3 years old, and potty trained at 4 years old. She was noted as clumsy and thus she did not participate in sports. She often fell flat on her face. She was noted to have bad penmanship, had trouble opening cans, and trouble climbing stairs. There was a family history of other family members who had the same problems and deformities. She also had severe scoliosis. The diagnosis was hereditary peripheral neuropathy, most likely of an autosomal dominant variant because of the presence of an affected member in every generation. The physician noted it was most likely peripheral neuropathy of the Charcot-Marie-Tooth (CMT) type. He noted the appellant’s severe scoliosis could further impair her neurological function. An October 1984 private treatment record notes that the appellant was 14 years old and that she was admitted for neurologic admission. The physician noted the appellant was doing well until 1978 when she developed difficulty walking with leg and foot pain, secondary to deformity of her feet. She underwent surgeries in July and August 1979, July 1982, August 1982, and August 1984. It noted response to surgery was mixed with some improvement but continued difficulty with walking and leg weakness. It noted that approximately one and a half year prior to admission, the appellant had scoliosis on routine physical examination. It also noted that in the past year, the appellant developed increasing weakness in her upper extremities and lower extremities, which waxes and wanes and could be unilateral or bilateral. She reported that recently she found herself unable to grasp objects with sustained strength and that her legs give out frequently. She also reported intermittent attacks of paresthesias, numbness and tingling, in her feet and hands. The diagnosis was CMT disease, Roussy Lévy Syndrome, Friedreich ataxia, and spastic ataxia. A November 1984 private treatment record notes the appellant as a 15-year-old with history of progressive scoliosis, history since early childhood of bilateral arch deformities, dorsiflexion weakness, and foot inversion posture requiring surgical procedures. The appellant complained of occasional distal extremity numbness, tinnitus, and frequent falls. There was negative history for ataxia or evidence of peripheral nerve enlargement, and a cranial-nerve examination was normal. 2010 to 2012 private treatment records note the appellant continued to suffer joint pain, headache pain, lower back pain, numbness in lower extremities and she underwent multiple surgeries. In 2011, the appellant attempted to commit suicide. An April 2014 private medical opinion indicated that the appellant first sought treatment in 2003 for CMT disease involving the feet and that she had multiple surgeries for the condition. The physician explained that CMT is an inherited progression peripheral neuropathy affecting the hands and feet causing severe disabling weakness and painful deformities, leading to progressive disability. The Social Security Administration (SSA) records reflect that the appellant filed a claim for disability benefits in March 2014 claiming that her CMT, as well as other multiple diagnoses, render her disabled. She indicated that she had never worked and that her disabilities prevented her from working since March 1997 and that her disabilities prevented her from graduating from high school. She reported that she lived alone in an apartment and receives assistance from a home health aide. She reported she engages in some house cleaning, prepares own meals, someone else does her laundry, and that without a home health aide, it takes her 2 to 3 days to clean her apartment. She reported she does not have a license or car. She is able to take care of her finances. She reported she has physical difficulties and difficulty paying attention. The SSA physician noted that due to the history of CMT diagnosed in 1984, by 1991, the appellant would only be expected to be worse. Therefore, he concluded the appellant was currently disabled. The SSA established onset date was noted as October 31, 1991, noted as the last day of the month before the appellant turned 22 years old. A September 2015 letter from a nurse from a residential support service company stated that S.S. had been a client since August 2013 to aid with personal care/grooming as needed, help with apartment cleaning and chores, provide ride for shopping and errands, and offer companionship. The nurse noted S.S. had multiple medical issues, some that have been present since birth, anxiety, and chronic pain that affected her on a daily basis. A September 2018 private medical letter indicated the appellant suffers from chronic pain from repeated foot surgeries and neuropathy. A September 2018 letter from a private home health company indicated that the appellant received 4 hours of homemaking service a week for light housekeeping, grocery shopping, and picking up medication. A November 2018 private medical letter noted the appellant suffers from PTSD and anxiety disorder, daily pain and mobility concerns due to her debilitating Charcot-Marie-Tooth syndrome and that her increase in pain intensifies her PTSD. A January 2019 private medical letter from a physician indicated that S.S. was treated for many years for her orthopedic conditions and that her degenerative neurological condition, CMT, affects her lower extremities and she developed severe bilateral foot and ankle deformities that required multiple surgeries over the past number of years. He concluded that her condition caused her to be physically disabled with difficulty walking and chronic pain and she will require additional surgery to address continued deformities affecting her lower extremities, which will cause prolonged casting and immobilization. In the January 2019 Board hearing, the appellant testified that she suffered from her disabilities since prior to her 18th birthday and that she lived with the Veteran and the Veteran had taken care of her prior to his death in March 2014. She reported that she received Supplemental Security Income (SSI) prior to her father’s death, and survivor’s benefits from the SSA. A March 2019 private treatment record notes the appellant underwent additional foot surgeries, to include partial amputation of toes, due to her foot deformities related to her CMT. Based on the foregoing, the Board finds that the evidence shows that the Veteran’s daughter, S.S. has physical disorders, permanent in nature, and had developed such disorders prior to the age of 18. Here, the records prior to S.S.’s 18 birthday, reflect diagnosis of CMT disease and severe scoliosis that resulted in severe deformities in her feet that required multiple surgeries and caused balance and walking issues, to include falling frequently. Thus, the medical evidence prior to 1987 indicates that S.S. was not able to care for herself. There is no medical evidence of record which refutes the claim that S.S. became permanently incapable of self-support prior to turning 18 years old. The medical evidence following 1987 indicates that S.S. has not improved such that it is evident that she is capable of self-support, as she received continued treatment and surgeries due to her CMT disease. She also indicated that she had never worked and relied on the Veteran and her SSI income prior to the Veteran’s death. She also received assistance from a home health aide to assist her with her activities of daily living. The Board acknowledges the appellant’s claim for SSA disability documents the appellant’s alleged onset of her inability to function and work as March 1997 and the SSA determined that she became disabled on October 31, 1991, noted as the last day of the month before the appellant turned 22 years old. The Board, however, is not bound by determinations of other Federal agencies. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (holding tat Social Security Administration determinations are not controlling for VA purposes). Here, the SSA physician did not provide rationale in support of the date of onset of her inability to work and as noted above, the medical records and opinions indicate that her CMT and scoliosis were severe, requiring multiple surgeries with continued difficulty with walking and leg weakness prior to her 18th birthday, and her symptoms from CMT and scoliosis with surgeries continued thereafter. Therefore, the Board finds that S.S. is entitled to recognition as the “helpless” child of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18 pursuant to 38 C.F.R. § 3.356. JENNIFER HWA 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.