Citation Nr: 21030353 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-52 249 DATE: May 18, 2021 ORDER Recognition of [REDACTED] (A) as the dependent child of the Veteran based on permanent incapacity for self-support prior to attaining the age of 18 is granted. Recognition of [REDACTED] (B) 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 Veteran's daughters, A and B, were permanently incapable of self-support by reason of mental defects prior to attaining the age of 18. CONCLUSIONS OF LAW 1. The criteria for recognition of A as the dependent child of the Veteran based on permanent incapacity for self-support prior to attaining the age of 18 are met. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.315, 3.356. 2. The criteria for recognition of B as the dependent child of the Veteran based on permanent incapacity for self-support prior to attaining the age of 18 are met. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.315, 3.356. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1968 in the United States Army. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran's claims file currently resides with the Muskogee, Oklahoma RO. In December 2019, the Board found that new and material evidence had been received to reopen the previously denied claims of recognizing the Veteran's children A, B, and Le. as dependents on the bases of permanent incapacity for self-support prior to attaining the age of 18. The Board then remanded these issues on their merits for additional development. Thereafter, via a May 2020 rating decision, a VA RO recognized the Veteran's son Le. as a dependent based on of permanent incapacity for self-support prior to attaining the age of 18. The Board finds that this grant constituted a full award of the benefit sought on appeal with respect to that issue and it no longer remained in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). Then, in August 2020, the Board remanded the issues of recognizing A and B as dependents once again due to a lack of substantial compliance with the December 2019 remand directives. The case has returned to the Board for appellate review. Recognizing A and B as Dependents Generally, 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 a 100 percent disability rating since May 2013. As such, the Board finds the 30 percent eligibility threshold established in 38 C.F.R. § 3.4(b) to be satisfied in the instant case. Moving beyond this initial threshold determination, the Board notes that the Veteran is seeking dependent pay for his daughters A and B. The record indicates that they were both born in September 1986 and, therefore, turned 18 years old in September 2004. See, e.g., May 2014 VA Form 21-686c. A child of a veteran generally does not qualify as a dependent for VA purposes once he or she attains 18 years of age. However, an adult child of a veteran may be considered a "child" for dependency purposes if he or she is unmarried and (1) was permanently incapable of self-support by reason of mental or physical defect before reaching age 18a "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. A and B are currently not married, and the Veteran has contended that they should be added to his award as helpless children. After reviewing the evidence of record, the Board agrees and, thusly, grants the Veteran's appeal. In support of this determination, the Board first notes that 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. Applying these principles to the instant case, the Board notes that both A and B were diagnosed with epilepsy as young children. See, e.g., June 2014 Dr. Moldovan Letter (noting that A was treated for epilepsy, grand mal, beginning at age 3); March 1993 Medical Information, Henrico County Public Schools (indicating that B had a health history of epilepsy). Additionally, both A and B were identified with a condition labeled "developmentally delayed" in their early years. See June 1994 Henrico County Public Schools Individualized Education Program (IEP) for B; June 1993 Henrico County Public Schools Individualized Education Program (IEP) for A. Accordingly, the Board finds that both A and B experienced disabilities with onsets prior to their 18th birthdays. Turning next to A and B's capacities for self-support prior to their 18th birthdays, the Board first notes that, in February 2021, the Veteran submitted copies of records from Henrico County Public Schools pertaining to A and B's development and demonstrated skills from kindergarten through 12th grade. The Board finds these records to be highly probative in the instant case. Specifically, regarding A, a June 2005 document titled "Present Level of Performance" summarized A's skills and deficiencies at the age of 18 years and 8 months. The document first indicated that A functioned significantly below grade level in all academic areas and that she had difficulty completing assignments independently, relying on assistance from instructors frequently. The document then noted that A needed consistent redirection to stay focused on tasks and that A had a tendency to withdraw and not communicate when asked to respond to information she did not understand. It was then indicated that A did not read and had difficulty counting coins, but that she could recognize signs and symbols. Lastly, while A had expressed a desire to become employed after finishing high school, it was noted that she was to apply for services to assist in the fulfillment of her needs after graduation. A similar document was prepared for B in June 2004 when she was at the age of 17 years and 8 months. Similar to her sister, Henrico County Public Schools noted that B performed "very low" is basic reading skills, mathematics, and calculation skills. While B did participate in a modified schedule which allowed her to work in a structured environment for half a day through a school program, it was recommended that the curriculum for her final year in high school be focused upon functional living skills and the development of work-related skills. Lastly, the document noted that B was to apply for assistance with independent living and job coaching. Separate from the school records received in February 2021, the Board notes that, in December 2020, the Veteran submitted copies of November 2020 letters from the Social Security Administration (SSA) regarding both A and B. These November 2020 letters indicated that both A and B were in receipt of disability benefits. Specifically, SSA had deemed both A and B disabled since May 1994 due to intellectual disabilities of a permanent nature. The letters indicated that both A and B continued to receive SSA disability benefits. In addition to A and B's school records and documents from SSA, the Board acknowledges lay testimony associated with the Veteran's claims file pertaining to A and B's capacity for self-support. Specifically, in June 2020, the Veteran indicated that both A and B could not read, write, count, or drive. Additionally, he stated that while they currently lived together, they still needed assistance in completing daily activities. Lastly, the Veteran stated that this need for assistance began prior to the age of 18. Similarly, in a May 2014 VA Form 21-686c, Declaration of Status of Dependents, the Veteran indicated that both A and B had never worked. While a May 2015 record from Richmond Community Hospital indicated that A had worked for some period of time, there is no evidence in the claims file indicating the type, manner, and duration of A's employment such that this individual record may serve as a bar to entitlement pursuant to 38 C.F.R. § 3.356. Rather, the Board finds the Veteran's own statementsand the bulk of the remaining recordmore probative such that the Board concludes that neither A nor B have ever earned sufficient income for their reasonable support through their own efforts both prior to and after their 18th birthdays. In summation, the evidence of record demonstrates that both A. and B. were diagnosed with disabilities prior to their 18th birthdays which caused significant academic challenges, reduced likelihoods of achieving employment, and decreased capabilities of functioning independently. The record also indicates that these challenges continued after their 18th birthdays in September 2004. Resolving any reasonable doubt in the Veteran's favor, the Board finds that both A and B were permanently incapable of self-support by reason of mental defects before reaching age 18. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.315(a), 3.356. As such, the Veteran's appeal is granted. S.C. KREMBS 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.