Citation Nr: 21027333 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-51 590 DATE: May 5, 2021 ORDER Entitlement to additional dependency compensation for step-daughter, L.L., based on permanent incapacity for self-support prior to reaching age 18 is denied. FINDING OF FACT The Veteran's step-daughter, L.L., has not been shown to have been permanently incapable for self-support prior to reaching age 18. CONCLUSION OF LAW The criteria for Entitlement to additional dependency compensation for step-daughter, L.L., based on permanent incapacity for self-support prior to reaching age 18 have not been met. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1981 to June 1992, from October 2001 to April 2003, and from July 2003 to November 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran has issues on appeal under the Appeals Modernization Act appeals framework. These issues will be decided in a separate appeal at a later date. Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to additional dependency compensation for step-daughter, L.L., based on permanent incapacity for self-support prior to reaching age 18 The Veteran asserted in a September 2012 statement that his step-daughter, L.L., is seriously disabled. He reported that she was born with congenital hypotonia and spent most of her childhood in the hospital with pneumonia. Over the years, her lungs became very weak. In April 2012, she got pneumonia that put her in the hospital for two months and resulted in a tracheostomy. The hospital only released her if she lived with the Veteran and he cared for her. 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 (a so-called "helpless child"), 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. The 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 claimant's condition subsequent to his or her 18th 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. Based on the evidence of record, the Board finds that L.L. was not rendered incapable of self-support prior to attaining the age of 18. The Veteran's step-daughter, L.L., attained the age of 18 in November 1999. There is little medical evidence of record and no evidence showing L.L. was permanently incapacitated prior to age 18. A September 2012 letter from L.L.'s clinician stated that L.L. has ongoing pulmonary disease and is dependent on oxygen twenty-four hours a day. The clinician opined that L.L. should not do any type of work in the community as it would put her at increased risk of possible illness and would be too strenuous. The Board notes that this letter is not evidence that L.L. was incapacitated prior to her 18th birthday. Rather, it describes her condition in September 2012 or thereabouts. Similarly, the Veteran's statement that L.L. was born with hypotonia, spent most of her childhood in the hospital with pneumonia, and her lungs became very weak does not show she was incapable of self-support prior to reaching age 18. Hypotonia is defined as a condition of diminished tone of the skeletal muscles, so that they have diminished resistance to passive stretching and are flaccid. Dorland's Illustrated Medical Dictionary, 907 (32nd ed. 2012). Benign congenital hypotonia is defined as a condition marked by signs of weakness and floppiness in babies, due to nonprogressive weakness of the skeletal muscles since birth. Neither of these definitions allows the Board to conclude on their own without additional evidence that hypotonia would have at least as likely as not rendered L.L. incapable of self-support prior to reaching age 18. Similarly, the Veteran's report that L.L. spent most of her childhood in the hospital with pneumonia does not allow the Board to conclude, without more evidence, that L.L. was permanently incapable of self-support because of these hospitalizations. The report that L.L.'s lungs became very weak is not accompanied by any time and level of severity such that the Board could conclude that L.L. was permanently incapable of self-support prior to reaching age 18. In October 2019, the Board remanded the claim to ask the Veteran to identify records of treatment for L.L. during her childhood, including whether she had an Individualized Education Plan (IEP) and to obtain authorizations for VA to obtain those records. In compliance with the Board's remand directives, VA sent letters to the Veteran in August 2020 and September 2020. The Veteran did not respond to these requests. Thus, information that could be supportive of his claim could not be obtained. The Board notes that the August 2020 and September 2020 letters represent substantial compliance with the Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In sum, the Board finds that while L.L. may have had some limitations prior to reaching age 18, there is insufficient evidence in the record to show that such limitations rendered her incapable of self-support. Therefore, recognition of L.L. as a "helpless child" on the basis of permanent incapacity for self-support prior to attaining age 18 is denied. See 38 C.F.R. § 3.102. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 510 (b); 38 C.F.R. § 4.3. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.