Citation Nr: 23036745 Decision Date: 06/29/23 Archive Date: 06/29/23 DOCKET NO. 19-05 711 DATE: June 29, 2023 ORDER Entitlement to recognition of R.W. as the Veteran's helpless child is denied. FINDINGS OF FACT 1. R.W. was adopted into the Veteran's household prior to the Veteran's death. 2. The weight of the evidence is against a finding that R.W. was permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria for recognition of R.W. as a "helpless child" of the Veteran have not been met. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.58, 3.210, 3.356. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1950 to August 1970. He died in July 2017. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 administrative decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2022, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. The appellant has another appeal before the Board. As that appeal involves issues dependent on different law and facts, it will be the subject of a separate decision. The appellant is the Veteran's widow and R.W.'s mother. She contends that R.W. was incapable of self-support prior to attaining the age of 18. The term "child" is defined, for purposes of Veterans' benefits, as an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran's household or was a member of the Veteran's household at the time of the Veteran's death, or an illegitimate child and who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self-support; or (iii) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57. To establish such entitlement, it must be shown that the child was permanently incapable of self-support by reason of mental or physical defect as of his or her 18th birthday. 38 C.F.R. § 3.356(a). Rating determinations regarding helpless child status are made solely on the basis of whether the child is permanently incapable of self-support through his or her own efforts by reason of physical or mental defects. 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. Id. There are several factors 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). 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 v. Brown, 4 Vet. App. 443, 445 (1993). By way of background, R.W. was born in February 1988 and attainted the age of 18 in February 2006. R.W. was adopted as a young child and her birth certificate lists the Veteran and the appellant as her parents. As such, R.W. is considered a child who attained that status before the age of 18 and was a member of the Veteran's household. Turning to the evidence of record, R.W.'s Individualized Education Programs (IEP) showed R.W. had a learning disability and was permitting to have extra time during testing from June 2002 through June 2006. She spent 33% of time in special education. In a December 2005 IEP, she was noted to have the mathematic abilities of a child 10-12 years old. Although she had visual processing deficits with math, she did not need interventions with other subjects. Her reading and reading comprehension scores were average. R.W. reported that she wanted to attend community college after graduation. Prior to attending school, the IEP showed that she would seek an apprenticeship, volunteer work, or a work/activity program. In addition, her individual transition plan provided that she was pursuing independent living for her post-school living arrangements. In an August 2018 letter, Dr. A.D. reported R.W. had been a patient since she was seven years old. She was asthmatic. At the June 2022, the appellant testified that R.W. was severely asthmatic as a child. She had learning difficulties and her school provided individualized education programs (IEPs) and a special resource class. R.W. was eventually diagnosed with schizophrenia and was first hospitalized in 2014 at age 25. After a careful review of the record, the Board finds that recognition of R.W. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is not warranted. The evidence shows that prior to the age of 18 that R.W. had a learning disability and was provided with accommodations to complete high school. There are no medical records show any diagnoses that limit her ability to perform daily activities at home, and in the community. Furthermore, on earlier VA records the Veteran did not indicate that R.W. was seriously disabled. Specifically, on a February 2010 VA application R.W. was listed as a student 18-23, and again on a January 2012 application she was not listed as seriously disabled. Thus, the record does not indicate that R.W. was permanently incapable of self-support as of her 18th birthday. In the absence of the requisite probative evidence, the claim is denied. The "duty to assist is not always a one-way street" and the claimant is obliged to cooperate in the development of the pending claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) Here, VA informed the Veteran (during his lifetime) in August 2016 of the information and evidence necessary to identify R.W. as a helpless child. Thus, and despite being informed of his duty to provide such, the Veteran did not provide evidence demonstrating that R.W. was incapable of supporting herself due to a physical or mental defect prior to February 2006. The appellant pursued the claim following the Veteran's death in July 2017. While the appellant has provided evidence applicable to the relevant period, prior to when R.W. turned 18, the evidence did not show R.W. was permanently incapable of self-support prior to reaching age 18. Instead, the evidence contained education records indicating some special education courses were taken, that R.W. needed extended testing time, and she had average reading and reading comprehension scores. R.W. had limited mathematic capabilities. Nonetheless, there is no indication that she was incapable of obtaining employment prior to February 2006 or that her daily activities at home, in school, and in the community were so limited such that the Board could conclude that she would not be capable of supporting herself in an employment context. As noted above, R.W.'s condition subsequent to her 18th birthday is generally not for consideration in the absence of a finding that L.T. was permanently incapable of self-support as of her 18th birthday. Dobson v. Brown, 4 Vet. App. 443, 445 (1993). Therefore, recognition of R.W. as a "helpless child" on the basis of permanent incapacity for self-support prior to attaining age 18 is denied. 38 C.F.R. § 3.102. As the weight of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, 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.