Citation Nr: 21041493 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-24 922 DATE: July 9, 2021 ORDER Entitlement to increased compensation for a dependent child, B.D., Jr., on the basis of permanent incapacity for self-support prior to reaching age 18, is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's son, B.D., Jr., was permanently incapable of self-support prior to age 18. CONCLUSION OF LAW The criteria for entitlement to increased compensation for a dependent child, B.D., Jr., on the basis of permanent incapacity for self-support prior to reaching age 18, have 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 October 1965 to October 1968, from March 1974 to March 1978, and from February 1990 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to increased compensation for a dependent child, B.D., Jr., on the basis of permanent incapacity for self-support prior to reaching age 18. The Veteran contends that his son, B.D. Jr., was rendered incapable of self-support prior to attaining the age of 18 by virtue of congenital defects. 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. 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 not required to proceed further. Id. In this case, the Veteran's son was born prematurely in March 1975. A July 1975 hospital record shows B.D., Jr., was born with an imperfect anus with no fistula present. A diagnosis at the time was anorectal agenesis with rectourethral fistula. In other words, B.D., Jr., was born with the absence of an anus and abnormal connection of the rectum to the urethra. A January 1979 medical record shows that, within months of birth, a colostomy was performed. Within a span of a few years, B.D. Jr., was found to have an atrophic left kidney. Procedures were performed to correct the rectourethral fistula and other abnormalities of his urethra. His atrophic left kidney was removed. He had continued reflux and infection of the right kidney. Thus, a ureterostomy was performed. In December 1977, B.D., Jr., was found to have a viral respiratory infection which subsequently caused him to have heart failure. He was treated and somewhat improved. A June 1993 private medical evaluation showed that B.D., Jr., underwent a renal transplant in 1987 because of chronic renal failure. He was experiencing rejection of the kidney due to apparent noncompliance with taking his medication. The evaluation also showed B.D., Jr., experienced neck and low back pain for many years as well as episode of chest pain. Prolonged sitting reportedly intensified the low back pain. In 1987, it was discovered that B.D., Jr., had a sacral bone agenesis (i.e. absence) and neurogenic bladder. He had chronic rectal prolapse. The June 1993 evaluator opined that, with all of these medical problems, there is enormous risk of complications such as infection which could involve the rudimentary urinary bladder, ileal conduit and rectum. The evaluator stated that B.D., Jr., lives under the close supervision of his mother at home, has never held a job in the workplace, and most of his time is spent caring for his bodily needs and maintaining personal hygiene. The evaluator further noted that B.D., Jr.'s formal education is limited to the ninth grade. The evaluator stated that one can only imagine the psychological effects that B.D., Jr., has sustained because of these multiple medical problems. The evaluator concluded that B.D., Jr.'s capacity for significant physical activity is severely limited. The Board finds that the June 1993 evaluation is persuasive and supports a finding that B.D., Jr., was permanently incapable of self-support prior to reaching age 18. Although the evaluation was performed after B.D., Jr.'s, 18th birthday, it was only several months afterward. Furthermore, it discussed the history of the disabilities throughout B.D., Jr.'s, life. Therefore, it is highly probative as to the condition prior to B.D., Jr.'s, 18th birthday. The Board finds the statement that most of B.D., Jr.'s, time is spent caring for his bodily needs is especially persuasive and consistent with the evidence. Additionally, the Board finds reports of pain, especially when sitting, and missing sacral bone combine to cause the Board to conclude that B.D., Jr., was permanently incapable of self-support prior to age 18. Although there was some contradictory evidence in the claims file, including a residual functional capacity evaluation from the Social Security Administration, the Board finds that the evidence is at least in equipoise. Therefore, the benefit of the doubt doctrine applies and the claim is granted. 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.