Citation Nr: 21028259 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 19-00 040 DATE: May 10, 2021 ORDER Entitlement to recognition of P.M. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18, is denied. FINDING OF FACT P.M. has not been shown to have been permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria for recognition of P.M. as a "helpless child" of the Veteran have not been met. 38 U.S.C. § 101(4)(A) (2012); 38 C.F.R. § 3.356 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran who is the appellant in this case served on active duty from October 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 Department of Veterans Affairs (VA) rating decision. This appeal has a lengthy and complex procedural history. In July 2013, a Board hearing at the RO (Travel Board hearing) addressing the current issue was held before a Veterans Law Judge (J.E.M.); a transcript is in the record. In January 2015, the case was remanded for the Veteran to be scheduled for another Travel Board hearing, which he had requested so that he could record the hearing with his own equipment [after being erroneously advised by the VA Chicago Office of Regional Counsel in June 2013 that he could not record the July 2013 hearing with his own equipment]. In April 2015, a Travel Board hearing addressing the current issue was held before the undersigned; a transcript is in the record. Because all Judges who have held a hearing on an issue must participate in a decision on that issue, this case was previously assigned to a Panel of three Veterans Law Judges. [Notably, during the April 2015 hearing, the Veteran waived his right for a hearing before a third judge.] In a March 2021 letter, the Veteran was informed that the Veterans Law Judge who conducted the July 2013 hearing (J.E.M.) is no longer with the Board and he was offered the opportunity to have another Board hearing. To date, he has not responded to the Board's March 2021 letter; therefore, he is deemed to have waived a new Board hearing. [The Board notes that all other procedural matters that were raised by the Veteran (including whether he may subpoena a witness to testify at a Board hearing, whether his expenses to travel to a hearing would be reimbursed, and whether he is entitled to a pre-hearing conference before a Veterans Law Judge) are not at issue before the Board. In March 2014, the Board issued an Interlocutory Order denying his April 2013 motion to subpoena a particular witness (J.K.) to testify at a Board hearing. In April 2014, the United States Court of Appeals for Veterans Claims (Court) issued an Order which: (1) granted the Veteran's motion for reconsideration of his January 2014 petition for extraordinary relief in the nature of a writ of mandamus (which had requested corrective actions regarding his case), and (2) dismissed his January 2014 petition (finding that all of the desired relief within the scope of the Court's mandamus power had been obtained). In its January 2015 remand, the Board notified the Veteran of the provisions of 38 C.F.R. § 20.712, which explicitly state that "[n]o expenses incurred by an appellant, representative, or witness incident to attendance at a hearing may be paid by the Government." At his April 2015 hearing, the Veteran was notified by the presiding Veterans Law Judge that the Board does not conduct pre-hearing conferences, other than to determine the issues on appeal prior to going on the record.] A January 2019 Board decision denied entitlement to recognition of P.M. as the helpless child of the Veteran. The Veteran appealed this decision to the Court, which in June 2020 issued a Memorandum Decision that vacated the January 2019 Board decision and remanded the matter to the Board for appropriate action. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). [The Board observes that P.M. is currently incarcerated for criminal offence, and has been since 1993. The Board acknowledges that governing law and regulations do not explicitly prohibit payment of "helpless child" benefits to a Veteran when the child in question is incarcerated; however, the payment of such benefits appears to be contrary to the overall intent of the law. Regardless, as the decision below finds that P.M. is not a "helpless child" based on his actual mental and physical capacity, the Board has not considered either P.M.'s incarcerated status, or the effect of such incarceration on the payment of dependency benefits in adjudicating this matter.] Entitlement to recognition of P.M. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18. The Veteran contends that his son, P.M., was rendered incapable of self-support prior to attaining the age of 18. For purposes of determining eligibility to be considered a veteran's child for VA compensation purposes, a child must be unmarried, and must either 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. 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 it 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 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. P.M. attained the age of 18 in November 1992. The Veteran contends that P.M. is a helpless child because he became incapable of self-support prior to the age of 18 due to his disabilities. Turning to the evidence, a February 1980 screening report for special education purposes indicated that P.M. had been referred by his classroom teacher for evaluation because of suspected sensory motor dysfunction. On evaluation, P.M. appeared to be slightly hypotonic (low muscle tone). Visual pursuits were slightly irregular in general. Eye movements across the midline were poor, and he would blink or turn his head to avoid crossing the midline. Diadochokenisis (rapid alternating movements) and thumb/finger touching were slightly irregular with overflow noted in the opposite hand. Deficits were noted which may interfere with gross and fine motor skills. P.M. also demonstrated difficulty in motor planning (executing new and unfamiliar tasks) and avoiding crossing the midline (crossing his hand past an imaginary vertical line down the center of the body). He also was unable to pick up double tactile stimuli when touched on his hand and face simultaneously. This may be indicative of deficits in the tactile system. Gross motor skills appeared to be adequate. Fine motor skills with the exception of pencil prehension also appeared to be adequate. The evaluating occupational therapist opined that problems in the areas noted can interfere with fine and gross motor skills, as well as reading skills and academics. In a November 1996 statement, submitted to VA in December 2009, P.M.'s treating physician stated that P.M. had been diagnosed as autistic, which is a continuing diagnosis since infancy. The physician opined that P.M. is incapable of self-support. As this opinion is conclusory and not supported by any analysis or rationale, it has no probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). In an October 2003 statement, the United States Office of Personnel Management, Retirement Services Program, found that P.M. is disabled and would continue to be covered by the Veteran's health benefits plan on a permanent basis. In a February 2010 statement, P.M.'s sister, B.P., stated that she observed P.M. as a child exhibiting irrational behavior that consisted of sitting and rocking for extended periods of time. Often when frustrated, P.M. began screaming loudly and their parents were unable to control some of his destructive behavior. B.P. recalled that P.M.'s education was predominantly conducted in a special education environment, and he received several kinds of therapy. In a February 2010 statement, P.M.'s mother stated that he was diagnosed as having autism as a young child by a pediatric neurologist. He did not speak at age four and a half, and was enrolled then in the school district's special education program. Through that program, he received speech, physical, and occupational therapies. Within a year, he began to speak, although with difficulty. The therapies continued until he entered the sixth grade, when they were discontinued due to his high grades. Upon entering high school, P.M. was so overwhelmed by his environment that he had a total relapse and began withdrawing from all activities. He was immediately placed back into special education programs. P.M.'s mother stated that he is very intelligent, but cannot function in a fast paced environment. In a February 2010 statement, N.W., P.M.'s former teacher, stated that P.M. was in special education classes and required daily occupational, physical, and speech therapies. His behaviors while he was in her class suggested that he was autistic and had motor and sensory deficits, and interviews with his mother confirmed that diagnosis. Upon completion of this kindergarten program, he attained the speech skills that prepared him to be transferred to the school system, and she recommend that he continued to receive these therapies through that district. N.W. stated that she has maintained a relationship with P.M.'s family since he was her student, and that she is aware of P.M.'s many difficulties that persist to this day. In the March 2011 substantive appeal, VA Form 9, the Veteran indicated that P.M. has obtained a General Equivalency Diploma (GED), completed a course of study for an Associate of Arts degree at an accredited university, and graduated as valedictorian from such university. During the July 2013 Board hearing, the Veteran testified that P.M. was born with autism spectrum disorder. He stated that this is a condition which is not a matter of intelligence. P.M. attended university and graduated with a 4.0 grade point average. The Veteran stated that autism is not limited to academics, but is a way of life. He stated that autism is a personality issue, specifically the inability to engage in personal relationships and when problems occur withdrawal within oneself. He testified that P.M. has never had a job, and has been incarcerated since 1993. The Veteran stated that regulations do not prohibit the receipt of a dependency allowance for compensation if a dependent is incarcerated. The Veteran's wife testified that they had spent hundreds of thousands of dollars for P.M.'s legal defense, and are still supporting him monthly by sending him food and other things; she testified that P.M. is very robotic in his thinking, but is extremely intelligent. In August 2016, the Veteran submitted information on neurodevelopment disorders, autism spectrum disorder, and intellectual disabilities. It is unclear from the record where this information was obtained, but it appears that it may have been copied from the Diagnostic and Statistics Manual (DSM-5). The Board notes that this information is general in nature and does not reflect P.M.'s specific individual functional capabilities or impairments; therefore, it has limited probative value. In August 2016, the Veteran also submitted a March 2011 statement by Dr. R.L., a licensed clinical psychologist. Dr. R.L. indicated that she had recently completed a diagnostic evaluation of P.M., which included a developmental history, cognitive assessment, clinical interview, and direct assessment of social behavior, as well as measures of depression and anxiety. Dr. R.L. stated that P.M. is a man of adequate cognitive ability and with intact basic communication skills. He self-describes as socially isolated, which is consistent with reports by his parents, notes from his psychiatric care, and clinical observations as part of this evaluation. P.M.'s very early developmental history includes serious social impairment, deficits in social-communication, sensory sensitivities, and a tendency to become preoccupied with particular topics. His early history, taken together with his current presentation of social communication deficits and restricted interests is consistent with the diagnosis of an autism spectrum disorder (ASD). As required by the diagnostic criteria, P.M.'s symptoms were present before the age of 3. In terms of the specific ASD, P.M. meets formal diagnostic criteria for autistic disorder because of delays int eh acquisition of phrase speech. In current presentation, his communication is adequate and his cognitive ability is average. Dr. R.L. stated that the diagnosis of autistic disorder indicates significant social deficits, social-communication impairments, restricted interests, and repetitive behaviors. These deficits affect every of the individual's life, including work, social relationships, and activities of daily living. Dr. R.L. concluded by opining that, at this point in his life, P.M. is not able to function independently as a result of his disability. Based on the evidence of record, the most pertinent of which was discussed above, the Board finds P.M. was not rendered permanently incapable of self-support prior to attaining the age of 18. The evidence reflects that P.M. has been diagnosed with autism disorder. See August 2016 statement from Dr. R.L. However, contrary to the Veteran's contentions, the diagnosis of autism disorder, by itself, is not sufficient to show that P.M. was permanently incapable of self-support prior to attaining 18 years of age. To the contrary, the question of whether a child was permanently incapable of self-support prior to attaining 18 years of age is dependent on the child's specific physical and mental capacity, including consideration of the child's particular functional abilities or impairments due to his or her disabilities (shown at the time of attaining the age of 18). As detailed above, the November 1996 opinion from P.M.'s treating physician that P.M. is incapable of self-support is inadequate and afforded no probative value. The opinion that "at this point in his life" [emphasis added], more than two decades after turning 18, P.M. is not able to function independently, does not address the critical question in this matter, i.e., whether P.M. was shown in 1992 (when he turned 18) to be permanently incapable of self-support. Dr. R.L. does not point to any evidence that P.M.'s functioning and capabilities shown contemporaneous with his turning 18, supported that he was then shown to be permanently incapable of self-support. The Board also finds that the August 2016 opinion from Dr. R.L. that P.M. is not able to function independently as a result of his disability otherwise has minimal probative value, as the opinion is conclusory and not supported by an adequate rationale. Furthermore, this opinion from Dr. R.L. does not clearly indicate that P.M. is incapable of self-support, only that he would not be able to work or function independently. Such inability to function independently would not necessarily preclude from employment in a supported environment that accommodates his particular functional limitations due to his autism. The Board notes that other government agencies have determined that P.M. is disabled and the Veteran's dependent; however, such determinations are based on different legal criteria and are not binding on VA, particularly in this decision (as they do not address whether P.M. was shown to be permanently incapable of self-support when he turned 18 in 1992, but instead address P.M.'s status at the time the determinations were made). The evidence of record pertaining to the P.M.'s actual functioning in 1992 is rather sparse. It shows he attained a GED degree, then apparently pursued higher education. The Board finds that while P.M.'s autism existed prior to his becoming 18, it is not shown to have rendered him permanently incapable of self-support prior to that time. Contrary to the Veteran's contentions, the diagnosis of autism disorder, by itself, is insufficient to show that P.M. was permanently incapable of self-support prior to attaining 18 years of age. The question of whether a child is permanently incapable of self-support prior to attaining 18 years of age is dependent on the child's specific physical and mental capacity, including consideration of the child's functional abilities or impairments due to his or her disabilities. While the record clearly indicates that P.M. has throughout had some level of impairment as a result of his autism, to the extent that he required special education services, it does not indicate that such impairment rendered him permanently incapable of self-support. To the contrary, he was able to obtain a GED and an associate degree, and graduated at the top of his university class, which reflects a capacity to perform functions that are similar to those that would be required in an employment setting (and suggests preparation for employment). The February 1980 screening report [long prior to his turning 18] indicated that his gross motor skills were adequate and his fine motor skills, with the exception of pencil prehension, also appeared to be adequate; the record shows that P.M. thereafter returned to the normal education environment for some period (suggesting that the deficit found in February 1980 was not permanent). Furthermore, the August 2016 statement by Dr. R.L. indicated that P.M. has adequate cognitive ability and intact basic communications skills, and does not identify any specific impairment(s) of physical and mental capacity that would permanently preclude employment, even in an accommodating work environment. For these reasons, the Board finds that preponderance of the evidence is against a finding that P.M. was shown to be permanently incapable of self-support prior to attaining age 18. Therefore, recognition of P.M. as a "helpless child" on the basis of permanent incapacity for self-support prior to attaining age 18 must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 51079b); 38 C.F.R. § 3.102 GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.