Citation Nr: 21031501 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-32 620 DATE: May 24, 2021 ORDER Entitlement to recognition of S.B. as a "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 The preponderance of the evidence is against a finding that S.B. was permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria for recognition of S.B. as a "helpless child" of the Veteran 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 honorably on active duty in the United States Army from July 1968 to June 1971. S.B. is his adult daughter. This matter comes before the Board of Veterans' Appeals (Board) from a May 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2019, the Board remanded the appeal for the agency of original jurisdiction (AOJ) to obtain a release from S.B. and obtain private treatment records from Dr. N.M., as well as her high school educational records. In response to the AOJ's request, the Veteran submitted the November 2003 psychological evaluation from Dr. N.M. and S.B.'s high school transcript records. Notably, records received from the Social Security Administration (SSA) include S.B.'s high school records. As all requested records have been associated with the record and S.B. has indicated that she had not received any mental health treatment, detailed below, the Board finds that no further action in this regard is required, as the AOJ substantially complied with the Board remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes after certification of the appeal to the Board, the Veteran submitted private treatment records in November 2020. Given the Veteran's substantive appeal was received after February 2, 2013, the Board will consider the additional evidence in the first instance and proceed with adjudication of the appeal. See Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154. Analysis The Veteran contends that S.B. is rendered permanently incapable of self-support prior to her 18th birthday, and hence is entitled to helpless child status due to her Autism disorder. The record reflects that the Veteran's daughter, S.B., was born in April 1987, and therefore her 18th birthday was in April 2005. 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. For purposes of initially establishing "helpless child" status, the child's condition subsequent to the 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, then evidence of the claimant's subsequent condition becomes relevant for the second step of the analysis; i.e., whether there is improvement sufficient to render the claimant capable of self-support. Dobson v. Brown, 4 Vet. App. 443, 445 (1993). 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. 38 C.F.R. § 3.356(b)(1). Employment that 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. See 38 C.F.R. § 3.356(b)(2). However, 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. Turning to the evidence of record, in a November 2011 VA 21-686c Application Request To Add And/Or Remove Dependents, the Veteran indicated S.B. was his biological daughter. In a corresponding November 2011 statement, the Veteran stated S.B. is not competent to perform everyday activities. SSA records document that S.B. was denied SSA disability benefits. The explanation of determination stated S.B.'s condition is not severe enough to be considered disabling. The SSA acknowledged S.B.'s assertion that she is unable to work because of her learning disability; however, based on the medical evidence, the SSA determined that she is able to communicate, act in her own interest, and take care of her usual daily activities without assistance. The August 2008 SSA examiner determined that S.B. had affective and adjustment disorders, but the impairments were not severe and caused mild functional limitations. The examiner stated S.B.'s activities of daily living were mildly limited but socially, she was not limited. The SSA evaluator stated S.B. can maintain her personal cares independently, does not cook, but prepares snacks, does chores, shops, socializes, can follow written and verbal requests, can count change but needs assistance with money management, and her IQ score was solidly average. The examiner also noted she has no history of mental health treatment, or prescribed medication. Consistent with the SSA's findings, in the July 2008 SSA Function Report completed by S.B. for SSA benefits, she stated that after waking up, she eats breakfast, washes dishes, waters plants, takes a walk, eats lunch, reads a book or watches television, and then eats dinner. In the section regarding her functional daily abilities, S.B. responded that she had no problem with personal care, including dressing, bathing, caring for her hair, shaving, feeding, and using the toilet. She also responded that she did not need any reminders to take care of her personal needs and grooming, or to take medication, and that she prepared her own breakfast and lunch almost every day of the week. Regarding house chores, she stated that she does laundry, washes dishes, and waters house plants every day. She also stated that she goes outside at least once every day and can go out alone. She reported that she does not drive because of too many distractions on the road. She is able to shop at stores for clothing and food. She reported she does not pay bills or use a checkbook, but that she is able to handle a savings account and count change. She stated she is not comfortable with handling large amounts of money. S.B. listed hobbies of reading, drawing, taking walks outdoors, and watching T.V. almost every day. She reported her social activities included talking to others at least once a week. She reported she does not need to be reminded to go to places or need someone to accompany her. She stated she can walk about a mile before needing a rest for about 20 minutes and that she can pay attention of a very long time. She reported she is able to finish what she starts and can follow written instructions. She reported that she had never been fired or laid off from a job because of problems getting along with others and does not have unusual fears. In the SSA application, S.B. reported she became unable to work because of her learning disability since April 15, 2008. She stated she is methodical and feels hopeless. She also indicated that she had not been treated for her condition and was not taking medications. She reported she had never worked. She completed high school and she stated she was in a class with other students that needed more personal attention than other classes. In the Observations section, the evaluator stated there was no difficulty in S.B.'s ability to read, understand, coherency, concentrate, talk, or hear. The SSA records also include multiple psychological evaluations of S.B. prior to her 18th birthday. In a November 2003 psychological evaluation, Dr. N.M. stated that S.B. was 16 years old at the time and, according to her mother, although there was uncertainty about the S.B.'s diagnosis of autism in Kindergarten, S.B. was diagnosed with autism in Kindergarten as a way to access the special needs classes. She had no history of repeated grades. S.B.'s teacher stated that S.B. was initially withdrawn and answered questions in monosyllables, but became more open and comfortable and engaged in spontaneous conversation. After observation and testing, Dr. N.M. explained her results revealed her manual motor speed and dexterity were mildly impaired, intelligence was in the low average range, working memory was mildly impaired, her ability to learn new information was average, and S.B. did not appear to have a mood disorder that would negatively affect her school performance and level of functioning. He concluded S.B. does not appear to meet diagnostic criteria for autism and that she will fare best in a safe and consistent environment and that she should look for outside social activities, and she would benefit from written instruction, reviewing information, use of mnemonics, and practice on a computer. A March 2005 high school evaluation report documents that S.B. was referred for special education at four years old for special education services due to bizarre behavior, limited social skills, and language abnormalities. It documented that S.B. was diagnosed with pervasive development disorder and mental retardation in 1995 by Dr. S. She had average reading skills, low in written expression, very low in math calculations, and severe discrepancy for a specific learning disability in math calculation skills and math reasoning. She received education services in 1996. In 2003, S.B. displayed a few characteristics of autism, but her communication, interests, and activities were within a normal range. She did not have difficulty with social interaction with adults but lacked friends and missed social cues. The evaluator stated that over the last three years, she progressed in academics, social skills, and appropriate behaviors. The evaluator also noted her obsessive-compulsive behaviors were significantly reduced. Testing revealed average reading skills, low in written expression, very low in math calculations, severe discrepancy for a specific learning disability in math calculation skills and math reasoning. She followed directions well, worked well independently and demonstrated good persistence, related to peers well and initiated conversations. It further documented that S.B.'s distractibility and other behaviors no longer negatively impacted her progress. It was determined that she qualified for continued special education services for a specific learning disability, but no longer qualified under the eligibility category of Autism. The evaluator noted that current IQ testing showed significant growth and that although the November 2003 evaluation from Dr. N.M. documented IQ testing was in the low average range, that test was in an unfamiliar setting with someone S.B. had not met before, whereas the 2005 evaluation was completed at her school with a familiar person. An August 2008 private psychological evaluation completed by Dr. B.B. documents S.B. reported that she never worked, but she then indicated she did not receive any mental health services, because she got a job looking after her mother. Mental status examination and personal hygiene were normal. Testing revealed average IQ scores. In summary, S.B.'s verbal comprehension skills were much better developed than her nonverbal reasoning abilities and her comprehension skills were comparable to those of her peers. The diagnostic impression was adjustment disorder, rule out specific learning disabilities, and features of borderline intellectual functioning. She was determined to be capable of managing her own funds, and that some behavioral modifications and vocational training was recommended with a fair prognosis. Based on the evidence of record, the Board finds the preponderance of the evidence is against a finding that S.B. was rendered incapable of self-support prior to attaining the age of 18. The preponderance of the evidence is against a finding that S.B. was not capable of self-support due to a mental or physical incapacity prior to her 18th birthday. In that regard, the 2005 psychological evaluation completed at S.B.'s high school just one month prior to her 18th birthday documents S.B.'s IQ score was in the normal range. Although the 2003 private psychological examination documented that S.B.'s IQ score was below the average range, the 2005 school evaluator explained that the 2003 test was in an unfamiliar setting with someone S.B. had not met before, whereas the 2005 evaluation was completed at her school with a familiar person. Therefore, her IQ range was within average prior to S.B.'s 18th birthday. The 2005 evaluation shows that although S.B. displayed a few characteristics of autism, her communication, interests, and activities were within a normal range and she did not have difficulty with social interaction with adults despite lacking friends and missed social cues. The evaluator noted that over the last three years, she progressed in academics, social skills, and appropriate behaviors, worked well independently, demonstrated good persistence, and related to peers well and initiated conversations. It further documented that S.B.'s distractibility and other behaviors no longer negatively impacted her progress. Thus, although she needed specially-designed instruction for a learning disability, S.B. was able to communicate, follow instructions, and complete high school with a 2.5 grade point average. Thus, the preponderance of the evidence is against a finding that S.B. was rendered incapable of self-support due to her learning disability prior to her 18th birthday. In addition, as detailed above, S.B. stated in her 2008 SSA application that she had no problems with self-care and all activities of daily living. Significantly, S.B. reported she became unable to work because of her learning disability since April 15, 2008, which is close to three years after her 18th birthday. In addition, in the 2008 private evaluation, S.B. indicated that she worked to take care of her mother. The Board notes in the July 2016 VA Form 9, Appeal to the Board, the Veteran indicated that S.B. was never able to hold down a job because of her learning disability and autism. Therefore, S.B. and the Veteran's statements that she never worked is inconsistent with S.B.'s statement in the 2008 evaluation that she worked, as well as the Veteran's statements made in the Form 9 that she did, in fact, work despite not being able to hold onto a job. Moreover, S.B.'s statements that she engaged in all activities of daily living and social activities without the assistance of others is also inconsistent with the Veteran's November 2011 statement that S.B. is not competent to perform daily activities. The Board also notes that the 2003 psychological evaluation documents that S.B.'s diagnosis of autism in Kindergarten was questionable and may not have been forthcoming and rendered so that S.B. would be eligible for state learning support services. Also, although it was documented that S.B. was diagnosed with pervasive development disorder and mental retardation, the records also do not support these diagnoses, as the 2003, 2005, 2008 and SSA medical professionals, each concluded S.B. did not meet the criteria for diagnosis of Autism disorder and they did not provide a diagnosis of mental retardation or pervasive development disorder, as S.B. was highly functional, despite needing some educational assistance. The SSA evaluator determined that S.B. had an adjustment disorder that resulted in mild impairment, as she was able to perform all activities of daily living. Finally, the Board acknowledges that the Veteran submitted an October 2020 private treatment record that documented S.B.'s and her parents' concern about an inability to function in the workplace, obsessive rumination, and managing with parent's support and that she was diagnosed with Attention Deficit Hyperactivity Disorder, obsessive compulsive disorder, and Autistic disorder of childhood onset. As noted above, S.B.'s condition subsequent to her 18th birthday is generally not for consideration in the absence of a finding that S.B. was permanently incapable of self-support as of her 18th birthday. Dobson, supra. Moreover, the private treatment records do not show that S.B. was permanently incapable of self-support as of her 18th birthday. The Veteran has provided evidence reflecting that S.B. received special education services during school years, but these records, along with the SSA documents, do not support the finding that she was incapable of obtaining employment prior to April 2005 or that her daily activities at home, in school, and in the community were so limited such that the Board could conclude that she would not be capable of supporting herself in an employment context. S.B. specifically stated that her learning disability rendered her unable to work from April 2008. Rather, the evidence confirms she was able to perform all activities, including recreational and social activities, independently, as of her 18th birthday. The Board finds that the weight of the most probative evidence, even after resolving all reasonable doubt in the Veteran's favor, fails to demonstrate that S.B. was permanently incapable of self-support prior to reaching age 18. Therefore, recognition of S.B. 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. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON 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.