Citation Nr: 21029810 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-46 565A DATE: May 17, 2021 ORDER Entitlement to recognition as a helpless child of the deceased Veteran, due to permanent incapacity for self-support at the age of 18, for purposes of entitlement to death pension is denied. FINDING OF FACT The appellant does not qualify as a helpless child of the deceased Veteran, for Department of Veterans Affairs (VA), because she was previously married. CONCLUSION OF LAW The criteria to recognize the appellant as a "helpless child" of the deceased Veteran have not been met. 38 U.S.C. §§ 101 (4)(A)(ii), 103(e), 1542; 38 C.F.R. §§ 3.55 (b)(1), 3.57 (a)(1), 3.356(a), 3.1000 (d)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from February 1944 to July 1945. He died in January 1997. The appellant is his natural born child. The case is on appeal from a September 2016 decision that denied the appellant's claim for death pension. Death Pension Non-service-connected death pension is an income-based benefit for the surviving spouse or child of a veteran who had requisite service during a period of war or was receiving compensation or retirement pay for a service-connected disability at the time of death. 38 U.S.C. § 1542; 38 C.F.R. § 3.3. The term "child" is defined as an unmarried person who is a legitimate or illegitimate child, a child legally adopted before the age of 18 years, or a stepchild who acquired that status before the age of 18 years and who is a member or was a member of the Veteran's household at the time of his death; and who is under the age of 18 years, became permanently incapable of self-support before reaching the age of 18 years, or after reaching the age of 18 years until reaching the age of 23 years if pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs. 38 C.F.R. § 3.57 (a). 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, 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(a), 3.1000(d)(2). To establish entitlement due to being a helpless child, various factors under 38 C.F.R. § 3.356 are for consideration. The marriage of a child of a Veteran shall not bar recognition of such child as the child of the Veteran for benefit purposes if the marriage is void, or has been annulled by a court with basic authority to render annulment decrees unless the Secretary determines that the annulment was secured through fraud by either party or collusion. 38 U.S.C. § 103 (e); see also 38 C.F.R. § 3.55 (b)(1). Although a child who has been married must now obtain an annulment to qualify for benefits as a helpless "child of the Veteran," on or after January 1, 1975, a child whose marriage has been terminated by death or dissolved by a divorce decree would still qualify for benefits as a "child of the Veteran," if the divorce decree was obtained prior to November 1, 1990. 38 C.F.R. § 3.55 (b)(2); see Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8004(a)(2), (b), 104 Stat. 1388, 1388-343 (1990). Facts and Analysis The appellant seeks entitlement to a death pension as the Veteran's helpless child. She claims she has had mental health issues since she was a child and that her marriage should not bar benefits as it was annulled. See Veteran's Correspondence, received August 27, 2015; See also November 2016 Notice of Disagreement. The appellant's birth certificate shows that she was born in May 1956. Her claim was filed in August 2015; therefore, she was over 23 years of age at the time of filing. Accordingly, the appellant may be considered as the child of the Veteran for VA purposes only if she is "shown to [have been] permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years." The Court has held that, in "helpless child" cases, the focus must be on the claimant's condition at the time of the 18th birthday. See Dobson v. Brown, 4 Vet. App. 443 at 445 (U.S. 1993). In other words, for purposes of establishing helpless child status, the Appellant's condition following her 18th birthday is not for consideration. If a finding is made that a claimant was permanently incapable of self-support as of the 18th birthday, 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. If the claimant is shown to be capable of self-support at age 18, VA is required to proceed no further. Id. The Board finds that the preponderance of the evidence is against recognizing the appellant as a helpless child of the deceased Veteran. Review of the record indicates that the appellant has undergone treatment for acquired psychiatric disabilities at Arbour Counseling since 2009. In January 2021, a psychologist at Arbour Counseling provided a statement indicating the appellant's current psychiatric diagnoses include bipolar disorder, alcohol use disorder, attention deficit disorder, general anxiety, and depression, and that she reported attending counseling since age 13. See Statement of Dr. J.M., received January 2021. In February 2021, a doctor from Arbour Counseling wrote that depression, bipolar disorder, and attention deficit disorder are generally thought to have a genetic component and would have been present since childhood. See Statement of Dr. G.H., received March 18, 2021. The Board has considered the Arbour Counseling statements but finds they cannot support the establishment of the appellant as a helpless child. The appellant was past the age of 18 in January 2021 when a history of childhood treatment was noted by the provider. As the evidence was not a contemporaneous record of care from the appellant's childhood, the Board affords the evidence little probative value. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). In addition, the February 2021 provider failed to identify his specialty, provide the basis for his knowledge of the Appellant's disabilities, and presented a general and speculative opinion without any analysis specific to the Veteran's case to support the finding that the diagnoses began in childhood. As such, the Board affords the evidence no probative weight. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Here, the evidence of record establishes that the appellant was married once prior to age 18 and later married again. See e.g., Sister's Statement, received January 13, 2021. It is unclear how the first marriage terminated, but she attained a divorce from her second husband. See 1999 Judgement of Divorce Decree, received December 3, 2015. Although the appellant asserted that she was not married and/or it was annulled, there is no documentation establishing that her marriage was void or annulled. See November 2016 Notice of Disagreement. Indeed, the appellant applied for widow's benefits from Social Security Administration (SSA) after her second husband died. See SSA Application Summary for Widow or Widower's Benefit, received November 5, 2016. Thus, the appellant does not meet the criteria of "child" as the evidence shows she was married and thereafter divorced. Due to the appellant's disqualifying marital situation, the Board need not address any further the factors regarding whether the Appellant became permanently incapable of self-support by reason of mental or physical defect at the date she attained the age of 18 under 38 C.F.R. § 3.356 (a). While the Board sympathizes with the Appellant's financial and medical circumstances, hardship does not affect the determination of whether she is considered a helpless child. Based on the evidence of record and in accordance with 38 U.S.C. § 103 (e) and 38 C.F.R. § 3.55 (b)(1), the Board finds that the claim of entitlement to recognition of the appellant as a helpless child on the basis of permanent incapacity for self-support is denied. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, Associate 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.