Citation Nr: 22005992 Decision Date: 02/03/22 Archive Date: 02/03/22 DOCKET NO. 18-48 482 DATE: February 3, 2022 ORDER Recognition of M.G. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is granted. FINDING OF FACT M.G. has 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 M.G. as a "helpless child" of the Veteran 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, who is the appellant in this case, served on active duty from July 1969 to June 1971 and from August 1971 to July 1975, with subsequent Army Reserve and National Guard service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2018 VA Form 9, the Veteran requested a Board videoconference hearing on this matter. However, as this decision is a full grant of the benefit sought, any error is harmless and there is no prejudice to the Veteran. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion 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). Entitlement to recognition of M.G. 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 child, M.G., was rendered incapable of self-support prior to attaining the age of 18. 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. 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. 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. By way of background, the Veteran's child, M.G., attained the age of 18 in June 1998. The Veteran contends that M.G. should be considered a "helpless child" because she became incapable of self-support prior to the age of 18 due to her disabilities. Based on the evidence of record, the Board finds that M.G. was rendered incapable of self-support prior to attaining the age of 18. The evidence of record establishes that she was a "helpless child" prior to the age of 18 due to her disabilities. In a June 2015 statement, the Veteran indicated that M.G. had been disabled since she was six years old due to mental illness and seizures. The Veteran submitted copies of M.G.'s Individualized Education Program (IEP) for the 1997-1998 school year, when she was in eleventh grade. Her primary disability was listed as "EMD," which is presumed to stand for emotionally and mentally disabled. She received a modified curriculum, with transition services needed for job and employment skills. She was expected to receive an attendance certificate instead of high school diploma. Her writing skills were on a third-grade level and her functional reading skills were on a fourth-grade level; however, her post-school outcome was that she planned "to gain employment/attend a post-secondary institution after high school graduation." A 1992 Psychological Evaluation Report for education purposes indicates that M.G. was not experiencing any medical problems, was not taking any medication, and her progression through developmental stages was appropriate for her age. Hearing, vision, and speech/language screening results were adequate and within a normal range. Testing indicated that M.G. was "functioning in the Educable Mentally Handicapped range, intellectually." Results indicated that M.G.'s cognitive development and visual-spatial skills were below adequate, and her achievement in the areas of reading and arithmetic were within the deficient range. Given that M.G's disabilities clearly existed prior to her becoming 18 and rendered her unable to sustain employment, the evidence supports a finding that she was permanently incapable of self-support prior to the age of 18. Therefore, the Board finds that the Veteran's child, M.G., meets the definition of a helpless child for purposes of VA benefits. S. B. MAYS 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.