Citation Nr: 22016268 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-48 536 DATE: March 21, 2022 ORDER Entitlement to additional dependency compensation due to recognition of A.G. as the Veteran's child, on the basis of permanent incapacity for self-support prior to attaining age 18 for the period prior to April 1, 2018, is denied. FINDINGS OF FACT 1. A.G. is the Veteran's biological child and was born in February 1987. 2. Despite the disabilities present at the time of his attainment of age 18, the evidence of record indicates A.G. has not been permanently precluded from being able to support himself financially since that time. CONCLUSION OF LAW For the period prior to April 1, 2018, the criteria for recognition of A.G. as the Veteran's "helpless child" on the basis of permanent incapacity for self-support prior to attaining the age of 18 have not been met. 38 U.S.C. §§ 101(4)(A), 5107; 38 C.F.R. §§ 3.57, 3.356. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had numerous periods of active duty service, to include from November 1983 to June 1990, September 10, 2001 to September 11, 2001, from September 2006, to February 2007, from May 2008 to October 2008, from January 2009 to April 2011, and from June 2011 to November 2011. A.G. is his adult child. This matter comes before the Board of Veterans' Appeals (Board) from a July 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to recognition of A.G. as the Veteran's child for the purposes of additional dependency compensation. The Veteran disagreed with this decision in a September 2012 notice of disagreement. Pursuant to his election in his September 2016 substantive appeal, the Veteran appeared and testified before the undersigned Acting Veterans Law Judge in a hearing conducted in June 2021. A transcript of the hearing has been included in the claims file. The other issue certified on appeal regarding an increased evaluation for a hiatal hernia will be the subject of a separate decision of the board. Entitlement to recognition of A.G. as the Veteran's child, on the basis of permanent incapacity for self-support prior to attaining age 18, for the period prior to April 1, 2018. The Veteran seeks additional dependency compensation based on recognition of A.G. as permanently incapable of self-support prior to attaining age 18. At the outset, the Board finds it useful to describe the somewhat unorthodox procedural history of VA's treatment of this claim up until this point. This benefit is available to Veterans with dependent children who are rated at least 30 percent disabled. 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). Here, there is no question that the Veteran has been in possession of a qualifying disability rating for the entire appeal period. The dispute before the Board is whether A.G. can be considered the Veteran's "child" for these purposes. Here, the Veteran initiated his claim by submitting a March 2011 claim in which he stated that A.G. was seriously disabled. As explained above, a VA RO initially denied this claim in a July 2012 decision, and his appeal to the Board was perfected in September 2016. While the Veteran was awaiting his hearing before the Board, he submitted an additional claim for dependency compensation for A.G. in March 2018. Although this issue was already on appeal before the Board, a VA RO nonetheless processed the claim and, based on the evidence submitted at the time of the March 2018 claim, granted recognition of A.G. as the Veteran's "helpless child" effective the date of the claim in a July 2018 administrative decision, with payment to begin April 1, 2018. The Veteran next informed VA that A.G. had married in July 2020 in a report of contact from October 2020. Accordingly, VA issued a new decision in October 2020 that removed A.G. from the Veteran's award effective August 1, 2020. As this issue was already within the Board's jurisdiction, it was not appropriate for a VA Regional Office to consider it. Nonetheless, the Board will not disturb the grant of additional dependency compensation for the period from April 1, 2018, through August 1, 2020. The remaining issue before the Board is whether the Veteran is entitled to additional dependency compensation for A.G. prior to April 1, 2018. With respect to this question, the Board will conduct a de novo review of the record to determine whether A.G. may be recognized as the Veteran's dependent child based on permanent incapacity for self-support prior to attaining age 18. See DAV v. Sec'y of Veterans Affairs, 419 F.3d 1317, 1319 (Fed. Cir. 2005). To be considered a "child" for these purposes, the individual in question 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). Here, there is no dispute in the record that A.G. was married in July 2020. He plainly does not qualify as a "child" due to his marital status beginning on that date. The only question is whether he satisfies that definition prior to April 1, 2018. Various factors are for consideration in determining whether a child is a "helpless child." 38 C.F.R. § 3.356. The fact that a child is earning his or her own support is prima facie evidence that he or she is not incapable of self-support, and 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). 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. 38 C.F.R. § 3.356(b)(2). 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 consideration as to 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. 38 C.F.R. § 3.356(b)(3). 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. 38 C.F.R. § 3.356(b)(4). The "focus of analysis must be on the [child's] condition at the time of his or her 18th birthday." Dobson v. Brown, 4 Vet. App. 443, 445 (1993). Accordingly, the child's condition subsequent to his or her 18th birthday is not of concern. If, however, the child was permanently incapable of self-support as of his or her 18th birthday, then evidence of the subsequent condition becomes relevant for determining whether there is improvement sufficient to render the child capable of self-support. If the child is shown to be capable of self-support at 18, VA is not required to proceed further. Dobson, 4 Vet. App. at 445. Here, the Veteran largely contends that psychiatric disabilities have prevented A.G. from being able to support himself. In July 2013, the Veteran indicated the Federal Emergency Management Agency (FEMA) had already determined that A.G. was permanently incapable of self-support and submitted a February 2013 letter from FEMA indicating A.G. was qualified to remain as an unmarried dependent family member of the Veteran's healthcare plan based on medical evidence that had been submitted. In his September 2016 substantive appeal, he acknowledged that A.G. had engaged in some employment activities, but the Veteran indicated the United States Air Force considers adult children to remain dependent if more than 50 percent of their monetary needs are supplied by a Veteran. He explained that he did provide more than half of A.G.'s living costs. In connection with his March 2018 claim for additional dependency compensation for A.G., the Veteran stated that A.G. had been a member of his household his entire life and had never lived outside of the family home or independently of the Veteran. The Veteran provided more substantial contentions regarding whether A.G. was permanently incapable of self-support at the June 2021 Board hearing. There, he reiterated that FEMA had already determined that A.G. was disabled under the rehabilitation act so that A.G. could remain on the Veteran's insurance. He also stated that when he turned 60, he went through the process with the Department of Defense (DoD) and the Defense Finance Accounting Service (DFAS) to add A.G. as his dependent. Ultimately, he testified that the United States Air Force had declared A.G. permanently incapacitated. The Veteran again acknowledged that A.G. was married and had worked, but stated that A.G. was underemployed, that it was hard for A.G. to stick to a job, and that A.G. required constant supervision with respect to activities of daily living, such as cleaning, occasional bathing, washing dishes, or cleaning clothes. In support of his claim, the Veteran also submitted education records from prior to A.G.'s eighteenth birthday which document A.G.'s additional services that he received as part of his education. Those educational records clarified that A.G. was permitted extended time to complete tests that were administered in a separate location, preferential treatment, additional support in math and English courses, as well as safety net provisions due to attention deficit hyperactivity disorder (ADHD) and a mood disorder. He also submitted a December 2004 statement from a treating physician stating that A.G. had received care for his ADHD and bipolar affective disorder since February 2002. The Board notes that these are the only substantial competent medical or educational records that were contemporaneous to the period prior to A.G.'s February 2005 birthday on which he attained age 18. They do demonstrate some degree of limitation on A.G.'s part and include competent diagnoses of psychiatric disabilities. They do not, however, appear to provide any significant insight regarding whether those limitations would be permanent in nature or suggest they would forever preclude A.G. from supporting himself financially. The Board observes that records from relatively shortly after A.G.'s eighteenth birthday appear to weigh rather heavily against the contention that A.G. would be permanently incapable of self-support. A.G.'s educational records demonstrate that A.G. continued to receive educational services in November 2005. The record also contains an August 2006 handicapped dependent form from a treating psychiatrist documenting A.G.'s recovery from a very serious bout of affective disorder that had rendered A.G. very fragile. Notably, the clinician who completed that form indicated A.G. was slowly improving and, in the clinician's professional opinion, could potentially in a year from that date be capable of self-sustaining employment. The Board finds that this competent statement from a treating clinician from less than two years after A.G.'s eighteenth birthday substantially weighs against a determination that he was permanently incapable of self-support at the time of his eighteenth birthday and had already demonstrated improvement such that he might be able to work and support himself. Although it is not a firm prediction, it clearly calls into question the permanency of A.G.'s difficulties in providing for himself at that time. While this report weighs against the Veteran's claim, the Board is not limited to contemporaneous records in considering whether A.G. was permanently incapable of supporting himself in February 2005. Retroactive reports from treating and examining clinicians may also be useful in considering this question, and the Veteran submitted additional various post-2005 statements from such clinicians in support of his claim. To that end, he submitted a letter from a treating nurse practitioner from January 2013 indicating she had treated A.G. since November 2008 and that he had not been able to take full responsibility for his life, live independently, or become financially independent from his family. A fairly cursory statement from a treating physician from July 2015 indicated A.G. carried diagnoses of anxiety disorder and ADHD, and that this disability occurred at age 16 and rendered A.G. incapable of self-support. This physician also provided an October 2017 statement that was submitted at the time of the March 2018 claim. In it, the physician stated that after reviewing records, it was determined that A.G.'s medical condition existed prior to his 21st birthday and prevented A.G. from being able to live independently or become financially independent. Ultimately, this clinician stated that the condition was permanent and left A.G. incapable of self-support after his conditions' onset at age 15. It appears that this medical statement was significant in the ultimate grant of recognition of A.G. as the Veteran's dependent "helpless child" in the July 2018 RO decision. The Board notes that the statements from those providers do not appear to come from clinicians who actually treated A.G. prior to his attainment of age 18. Although there are references to records having been reviewed, it is unclear which records were considered and whether they included childhood evidence of psychiatric impairment. The Board therefore finds that while they are competent to consider whether A.G. was permanently incapable of self-support at the time of his eighteenth birthday, they are of limited probative value. The only other substantial evidence in favor of the Veteran's claim is his own competent statements regarding his observations of A.G. throughout A.G.'s life and his largely credible reports that A.G. has had psychiatric difficulties throughout his life that have also impacted A.G.'s ability to work. Ultimately, the evidence appears mixed regarding whether A.G. was incapable of self-support at the time of his eighteenth birthday, with a medical record more closely following that date indicating whatever limitations he had were potentially temporary, rather than permanent in nature. However, even viewing this evidence in the light most favorable to the Veteran and assuming that it did indicate A.G. was permanently incapable of self-support, binding caselaw on the Board directs the Board to consider A.G.'s adult work activities in considering whether A.G. may be considered the Veteran's "helpless child." See Dobson, supra. The Veteran has largely characterized A.G.'s work activities as minimal. He has submitted various tax returns from A.G., to include in October 2016 from various tax years including 2008 through 2015. In his September 2016 substantive appeal, the Veteran indicated A.G. had maintained part-time employment alternating with periods of unemployment since 2009. As explained above, despite these earnings, the Veteran also indicated at that time that he provided for more than 50 percent of A.G.'s living expenses. He urged VA to consider that A.G.'s annual income was below the poverty threshold at that time. In July 2018, the Veteran provided additional tax return information from the 2017 tax year. The Board has reviewed this financial information and considered the Veteran's arguments that A.G.'s earnings have not amounted to much. Indeed, several of the years for which tax returns were submitted do suggest that A.G. earned less than the poverty thresholds for the respective years, to include from 2008, 2009, 2011, 2013, and 2014. However, A.G. did exceed this threshold according to the submitted tax returns in both 2012 and 2015. The Veteran also reported in a July 2018 statement that A.G. had relatively recently been employed at a local grocery store earning $11.50 per hour and worked approximately 30 hours per week. On an annualized rate working 52 weeks per year at this frequently equates to earnings in excess of $17,000 per year, which substantially exceeds the poverty threshold for a single individual for that year. The Board recognizes that the Veteran has routinely suggested that A.G. has been underemployed. However, he has not suggested that any of these employers have offered A.G. employment solely upon sympathetic or charitable considerations, as contemplated by 38 C.F.R. § 3.356(b)(4). The Board finds that this substantial work activity through which A.G. has been able to provide for himself at a level above the poverty threshold in multiple years weighs heavily against a determination that A.G. has been permanently incapable of self-support. As explained above, even assuming that the record did indicate he was incapable of self-support at the time of his eighteenth birthday, this work and earnings evidence represents prima facie evidence that A.G. is not permanently incapable of self-support. See 38 C.F.R. § 3.356(b)(1). Viewed as a whole, the Board finds that this prima facie work evidence represents the most probative of the competence evidence of record regarding the question of whether A.G. was permanently incapable of self-support at the time of his eighteenth birthday. As such, the Board finds that the clear weight of the evidence is against the claim, and it must be denied. In making this determination, the Board recognizes that other Federal agencies, to include FEMA and DFAS have come to the opposite conclusion. However, only VA's statutes, regulations, and applicable caselaw control the Board's determinations on this issue. For the reasons explained above, those VA-specific criteria have not been met. The Board also recognizes that the record does not contain any substantial underlying medical records for A.G. outside of the rather cursory statements of treating clinicians. The claims file does not also contain the underlying medical records considered by FEMA or DFAS in making a determination of dependency. The Board ultimately finds that, in light of the substantial evidence of significant earnings on A.G.'s part, any such underlying medical records would not alter the ultimate negative outcome. Although they may confirm that A.G. has continued to experience psychiatric limitations throughout his life, there is no indication anywhere in the record that they would alter the clear evidence of A.G.'s earnings since he turned age 18. No benefit would flow to the Veteran by remanding the matter to attempt to obtain any such records. See e.g. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown 6 Vet. App. 426, 430 (1994). Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.