Citation Nr: 22018233 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 06-11 813 DATE: March 28, 2022 ORDER Recognition of R.B. 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 The evidence is in relative equipoise as to whether R.B. 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 R.B. 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 served on active duty from September 1988 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Board remanded this matter for additional development and it has since returned for further appellate consideration. 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 R.B. 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, R.B., 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. 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. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). By way of background, the Veteran's child, R.B., attained the age of 18 in January 2007. The Veteran contends that D.H. constitutes a helpless child because he became incapable of self-support prior to the age of 18 due to his disabilities. Based on the evidence of record, the Board finds that R.B. was rendered incapable of self-support prior to attaining the age of 18. The evidence of record establishes that he was a "helpless child" prior to the age of 18 due to his disabilities. Given that R.B.'s disabilities clearly existed prior to his becoming 18 and rendered him unable to sustain employment, the evidence supports a finding that he was permanently incapable of self-support prior to the age of 18. Therefore, the Board finds that the Veteran's child, R.B., meets the definition of a helpless child for purposes of VA benefits. An April 2007 private psychological evaluation report indicated that R.B. had diagnoses of attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder, communication disorder not otherwise specified (NOS) (central auditory processing disorder, primarily affecting receptive language), dysthymic disorder (provisional), and adjustment disorder with mixed disturbance of emotions (rule out mood disorder, rule out posttraumatic stress disorder), as well as a history of traumatic brain injury at a very young age. Testing indicated that R.B. had significant weaknesses in listening comprehension, math reasoning, and reading comprehension. The evaluating psychologist opined that R.B.'s ability to function socially will show moderate to severe impairments and he will probably have difficulty listening to what others say. He would have difficulty taking notes in either classroom or work settings, and reading ability was likely to be significantly impaired due to his moderate and severe attention deficits. The evaluator opined that individuals with this profile may give up easily and are very likely to experience failure in either school or work. R.B. appeared to exhibit relatively severe problems with inability to organize and initiate action, with inattention and distractibility with inability to sustain on task behavior and persist to completion and with impairment of ability to use working memory. He also appeared to exhibit moderate to severe problems adaptively modulating negative emotions such as frustration and anger. In March 2021, a VA psychologist, Dr. S.J., opined that R.B. is less likely than not capable of functioning n his own. This was based on review of the April 2007 private psychological evaluation report. Dr. S.J. noted R.B.'s diagnosed disabilities, as well as reports of severe impairment in multiple areas of functioning. Dr. S.J. specifically noted that that the 2007 psychological evaluation indicated that RB is severely impaired in comprehending, whether he hears the information or reads the information, and opined that this would present severe difficulties and impairment in his ability to find work and sustain employment as every job requires comprehension of tasks and goals. Dr. S.J. further noted that R.B.'s grades were below average throughout school indicating consistency with this impairment. Dr. S.J. also opined that R.B.'s impaired mathematic abilities would impair his ability for self-support, as working with numbers or any job requiring basic mathematical skills would result in lack of efficiency and correctness form R.B. Furthermore, Dr. S.J. opined that R.B.'s insight into his self and abilities is impaired, such that he would likely struggle to understand the effect his behaviors have on others which would make maintaining employment difficult. Dr. S.J. also opined that R.B.'s poor coping skills and low stress thresholds would make being employed with any perceived stress or difficulty unlikely, as he does not possess the coping skills to manage stressful situations. In June 2021, a separate VA psychologist, Dr. S.C., opined that R.B. was not permanently incapable of self-support prior to his 18th birthday. This opinion was based upon review of the 2007 private psychological evaluation report. Dr. S.C. found it probative that this report indicated that R.B. had improved after medication for ADHD was given and that his last report card showed grades ranging from A's to D's, which Dr. S.C. opined meant that R.B. has the capacity to learn and apply information when he is motivated. He had an A in football, a D in history after threatening the teacher, and a C in environmental sciences. He was in 11th grade, and there was no mention of being held back or being placed in special education. Dr. S.C. opined that if R.B. had been deemed as incapable of self-care the school would have flagged him in early childhood and had him go to specialized classes to help him develop. Dr. S.C. concluded that R.B. shows more signs of poor self-control and a disregard for consequences to behaviors. The Board finds the March 2021 and June 2021 VA medical opinions to be both adequate and highly probative. Both are based on review of the record, including the 2007 private psychological evaluation report, and provide detailed rationales to support their conclusions. As both opinions are adequate and highly probative, the evidence is in relative equipoise as to whether R.B. was permanently incapable of self-support prior to attaining the age of 18. Therefore, the benefit-of-the-doubt rule applies, and recognition of R.B. as a "helpless child" on the basis of permanent incapacity for self-support prior to attaining age 18 is granted. See 38 C.F.R. § 3.102. 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.