Citation Nr: 22016175 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-28 600 DATE: March 21, 2022 ORDER Entitlement to helpless child status for death pension benefits is denied. FINDINGS OF FACT 1. The Veteran's son was born in May 1969 and attained the age of 18 in May 1987. 2. The evidence of record persuasively weighs against finding that the appellant became permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria for entitlement to VA death pension benefits for the appellant as a child of the Veteran are not met. 38 U.S.C. §§ 101 (4)(A), 5107(b); 38 C.F.R. §§ 3.57, 3.102, 3.356. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1968 to July 1970. The Veteran died in February 2005. The appellant is the Veteran's adult child. In January 2019, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to helpless child status for death pension benefits In October 2015 the appellant filed a claim requesting death pension benefits alleging entitlement to receive benefits as he was born on a Naval base. Improved death pension is a benefit payable to a veteran's surviving child because of the veteran's nonservice-connected death. For eligibility as a claimant, a child must be unmarried and either (1) under the age of 18; (2) have become permanently incapable of self-support before the age of 18; or (3) 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) (2012); 38 C.F.R. §§ 3.57 (a)(1), 3.356 (2021). The evidence of record establishes that the appellant was born in May 1969; therefore, he is over the age of 23 and may only obtain eligibility as a helpless child. See Birth Certificate September 1970. For helpless child status, it must be shown that the child of the Veteran became permanently incapable of self-support because of mental or physical defect at the date of attaining the age of 18 years. See 38 C.F.R. § 3.356. Under 38 C.F.R. § 3.356 (a), a child must be shown to be permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. The focus of analysis is on the individual's condition at the time of his/her 18th birthday. It is that condition which determines whether entitlement to the status of "helpless child" should be granted. See Dobson v. Brown, 4 Vet. App. 443 (1993). Rating determinations will be made solely based on whether the child is permanently incapable of self-support through his or her own efforts by reason of physical or mental defects. Id. 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. Rating criteria applicable to disabled veterans are not controlling. Id. Under 38 C.F.R. § 3.356 (b), principal factors for consideration are as follows: (1) Whether the claimant is earning his or her own support; if so, this is prima facie evidence that he or she is not incapable of self-support. Id. 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. Id. Employment which was only casual, intermittent, tryout, unsuccessful, or terminated after a short period because 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. Id. 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 it 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. Id. 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 appellant's mother provided a statement reporting that he was diagnosed with schizophrenia in 1978 while hospitalized and underwent an adolescent program. She has stated that he had been in and out of several psychiatric institutions. See Buddy/Lay Statement May 2017. A May 2019 development letter requested a VA Form 21-4142 Authorization to Disclose Information and a VA Form 21-4142a General Release for Medical Provider Information so the treatment records for the psychiatric institutions could be obtained. Additionally, the appellant was requested to provide the following to support his claim: 1) at statement from a physician showing the extent of disability, diagnosis, prognosis, and date of onset; 2) statement from an institution attended for treatment or care explaining the appellant's condition at entrance and discharge; 3) statement from a school official showing whether progress occurred or could have been expected; 4) a statement showing dates and amounts of earnings during employment; and 5) if the above evidence could not be provided a statement from at least two persons who knew the appellant's condition at age 18 and after. To date, this information has not been provided. The duty to assist is a two-way street, which requires the appellant's active participation in a claim for benefits. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The evidence includes records from the Social Security Administration (SSA) for the appellant's claim for disability benefits. The SSA records show that that appellant worked for several years prior to July 2009, when he reported stopping for reasons unrelated to disability (the store closed). SSA concluded that the appellant had severe impairments of back disorder and mood and psychotic disorder not specified with a disability onset date of July 2009, well after the appellant's 18th birthday. Thus, the only evidence of record concerning appellant's condition prior to age 18 consists of his mother's statement that he was diagnosed with schizophrenia in 1978 and attended an adolescent program. There is no medical evidence in the record to support a finding that he was permanently incapable of self-support by reason of mental or physical defect prior to age 18 to prevent him from self-support. Additionally, the SSA records indicate that subsequent to his 18th birthday the appellant obtained his GED and had the ability to gain employment as he worked at several places of business prior to 2009. Accordingly, the Board finds that the evidence does not establish that the appellant was permanently incapable of self-support prior to age 18. The VA definition of "child" is a particular one, and he is not shown to have the qualifications necessary to be recognized as an adult "helpless child" of the Veteran. As the appellant does not meet the definition of child for the purpose of VA death pension benefits, the claim is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED