Citation Nr: 25008802 Decision Date: 07/03/25 Archive Date: 07/03/25 DOCKET NO. 17-50 566 DATE: July 3, 2025 ORDER Entitlement to recognition of the Veteran's son, C.B., as a helpless child, on the basis of permanent incapacity for self-support prior to attaining the age of 18, is denied. FINDING OF FACT The most probative evidence does not support that C.B. has been permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria for entitlement to recognition of the Veteran's son, C.B., as a 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) (2024); 38 C.F.R. § 3.356 (2024). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1990 to September 1994. The Board of Veterans' Appeals (Board) sincerely thanks the Veteran for his service. This appeal to the Board arose from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in January 2021 by the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the file. In April 2021, the Board remanded the appeal for further evidentiary development, specifically to obtain information regarding employment and income, and a medical opinion. See April 2021 BVA Decision. In December 2022, the Board denied the appeal. See December 2022 BVA Decision. The Veteran appealed the Board decision to the Court of Appeals for Veterans Claims (CAVC or Court), which vacated the decision and remanded it back to the Board for further development in November 2023, pursuant to Joint Motion for Remand (JMR). See November 2023 CAVC Decision. In May 2024, the Board remanded the appeal pursuant to the directives outlined in the November 2023 JMR, for further evidentiary development. Specifically, the Board remanded in order for the Agency of Original Jurisdiction (AOJ) to obtain authorizations from the Veteran to obtain C.B.'s private medical and educational records in support of the claim, to include from three private facilities - Stevensville Pediatrics, Mid-Hudson Health Specialties, and the Western Montana Comprehensive Development Center. See May 2024 BVA Decision. In May 2024, the AOJ requested the Veteran to complete the authorization forms allowing the AOJ to request treatment records from the private sources he identifies on the authorization forms. See May 2024 Subsequent Development Letter. The Veteran did not return the requested authorization forms and did not otherwise respond to this request. In August 2024, the AOJ sent another duty-to-assist letter to the Veteran. The August 2024 letter again requested the Veteran to complete the authorization forms allowing the AOJ to obtain private treatment records on his behalf. The August 2024 letter also specified the private medical facilities listed in the Board's May 2024 remand directives - Stevensville Pediatrics, Mid-Hudson Health Specialties, and the Western Montana Comprehensive Development Center. See August 2024 Subsequent Development Letter. The Veteran did not return the authorization forms, or otherwise respond to this request. In October 2024, the AOJ sent another letter to the Veteran, again requesting him to fill out and return the VA authorization forms (VA Form 21-4142 Authorization to Disclose Information to the Department of Veterans Affairs; and, the VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs). see October 2024 Subsequent Development Letter. As before, the Veteran neither returned the authorization forms nor did he otherwise respond. In sum, the Veteran did not respond to any of the three requests. Additionally, there is no indication that the May, August, and October 2024 letters were sent to an incorrect address, and the file does not reflect that any of the letters were returned as undeliverable. Accordingly, the Board finds that the AOJ substantially complied with the May 2024 remand directives to the extent possible. VA has a duty to assist the Veteran in obtaining information, and the Veteran has a duty on his part to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Accordingly, as the Veteran has been provided multiple opportunities to submit the requested evidence, the Board will proceed with the appeal, based upon the evidence of the record. Entitlement to recognition of the Veteran's son, C.B., as a helpless child, on the basis of permanent incapacity for self-support prior to attaining 18 years of age. 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 of Appeals for Veterans Claims (Court or CAVC) has held that, in "helpless child" cases, the focus must be on the claimant's condition at the time of one's 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 one's 18th birthday is not for consideration. If a finding is made that a claimant was permanently incapable of self-support as of one's 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 son, C.B., attained the age of 18 in April 2012. The Veteran contends that his son constitutes as a helpless child because he became incapable of self-support prior to the age of 18 due to his disability, specifically autism spectrum disorder. In November 1996, when C.B. was 33 months old, a clinician determined that he exhibited a mild autism score. It was reported that C.B. demonstrated several behaviors that were different in quality than other children his age. He had difficulty with social interaction, responding to people or activities with positive emotion, responding to adults' language, playing with toys in flexible ways and adapting to change. He had the basic foundation for fine motor development. His limitation does not appear to be a problem with physical motor development. It was opined that he would benefit from sensory integrative therapy to increase his ability to sense and respond within the bounds of safe and socially appropriate behavior. See February 2017 Medical Treatment Record - Non-Government Facility. In April 2002, it was noted that C.B. had autism spectrum disorder and was considered "50 percent disabled or more", without providing any further explanation. See February 2017 Medical Treatment Record - Non-Government Facility. In an April 2003 Communication Evaluation, it was determined that C.B. is a student with autism spectrum disorder who was demonstrating many language skills well within the average range for a child his age. He made incredible progress in his overall communication skills and appropriate adaptations in a regular classroom setting. He did need assistance in dealing with frustrating situations. In May 2003, it was reported that C.B. showed difficulty with social language and social interaction. He continued to meet special needs support. See September 2015 Medical Treatmet Record - Non-Government Facility. In April 2010, it was reported that C.B. was doing well in school and that he had no problems finishing his assignments independently. He did get frustrated when overwhelmed. He struggled with reading comprehension and became upset when he was not fully aware of what was going on. It was reported that C.B. worked very hard and had a tremendous desire to learn. He was honest and very polite. It was reported that with the help of a paraprofessional, C.B. will learn to pace himself and focus to seek help when he is overwhelmed or frustrated. He will also learn to advocate for himself by verbalizing solutions with the resource staff. He connected well with other students for the most part. He planned to work in his father's business after graduation. Extended school year services were not necessary for C.B. See Id. In September 2014, C.B. received his high school diploma. See February 2017 Diploma. In January 2021, the Veteran testified that his son had physical abilities to work and do certain things, but does not have mental ability to live alone. C.B. had the ability to manage regular, mundane things in life. The Veteran had to remind C.B. to take showers. He did not have social skills and had to live with the Veteran. An adult facility where adults with disabilities could live was considered for C.B. but it was not fruitful. The Veteran reported that his son had narcolepsy, but has a driver's license and is able to drive. See January 2021 Hearing Transcript. In March 2022, a VA clinician opined that the requested medical opinion by the Board pertaining to C.B.'s condition should be rendered by a specialist who has expertise in autism (child/adult psychiatrist or psychologist; pediatric/adult neurologist; developmental pediatrician), as the specialist would have the knowledge to interpret the developmental evaluations, tests, tools, and diagnostic studies that were conducted on the child and included as evidence to determine the severity of the condition on functioning. In a July 2021 psychological evaluation, it was reported that C.B. lived with a friend at the time, as he had a falling out with his family. He was not working at the time of the evaluation. Rapport was easily established and maintained throughout the testing session. C.B. was able to focus and attend to the task-at-hand. He did not require redirection or refocusing. See December 2023 Medical Treatment Record - Non-Governmental Facility. A review of a September 2022 evaluation report revealed that since 2017, C.B. has been taken in by and lived with various members of the congregation, but it has not been successful. C.B. needs supervision and a group home placement was best suited to his needs at that time. Pertaining to interests, C.B. liked having his independence and was able to drive and shop on his own. Pertaining to values and goals, he wanted to live with other individuals where he has the support, needed to be more independent, and would like to be employed and self-sufficient. Regarding additional strengths or needs, C.B. needed supervision in most areas of daily living, managing his money, shopping, cooking and cleaning specifically. He needed reminders and assistance with scheduling medical appointments and managing his medical needs. See Id. In an August 2022 addendum VA opinion, the VA clinician opined that the evidence in the claim file supported that prior to age 18, C.B. had mild autism spectrum disorder with average to very superior intellectual capacity and intact memory. The examiner continued that C.B. had the ability to learn and apply detailed information in order to learn and consistently carry out routine, skilled, hands-on labor type tasks, such as welding or other technical/trade skills. The opinion furthered that while he learned better through hands-on learning and demonstration than he did through reading, he was capable of learning a trade and once he learned the trade, he can consistently and routinely carry out the work at a level that can provide self-support. C.B. also has mild to moderate social skills deficits, consistent with his mild autism spectrum disorder diagnosis, but he can interact with others effectively in a low social work position and setting. He was also able to work independently without distracting himself or others and make simple decisions independently. The examiner opined that while his father reported he has difficulties with mundane activities of daily living and needed reminders for tasks, such as eating and showering, C.B.'s intellectual and adaptive functioning are such that with supports in place, such as a structured schedule, written reminders, or alarms, he is capable of learning to independently carry out these tasks. The clinician concluded that while he requires some supports in daily living, consistent with his mild autism spectrum disorder, this does not preclude him from self-support as defined by VA regulations. See August 2022 C&P Exam. The Board notes that while there have been medical opinions obtained pertaining to the capacity of C.B. for self- support, the question of permanent incapacity for self-support prior to attaining the age of 18 is a legal question, not a medical question. See 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.356(b) ("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."). After a thorough consideration of the evidence of the record, the Board finds that the most probative evidence does not establish that C.B. was permanently incapable of self-support prior to attaining the age of 18. While the evidence shows that C.B. experienced some difficulties in school and required some support, the evidence shows that he made progress and performed well in school. Prior to attaining the age of 18, it was shown that he demonstrated many language skills well within average range. It was reported that he did well in school and made progress in communication skills. The Board acknowledges that C.B. needed special education services during school. However, that alone does not show that his disability rendered him incapable of self-support prior to attaining the age of 18. The April 2010 report showed that C.B. could perform certain tasks independently and can learn skills that would help him become self-sufficient. It was also reported that extended school services were not necessary for him. Again, the focus on this matter must be on the condition of the child prior to 18th birthday. If there is insufficient evidence establishing permanent incapacity for self-support prior to attaining the age of 18, the child's condition subsequent to turning 18 is not for consideration. See Dobson, supra. Nonetheless, the evidence reveals that C.B. is able to perform tasks on his own and has goals to become more independent and self-sufficient. The evidence does not indicate that C.B. has not been able or will not be able to become self-sufficient. There is insufficient evidence to support that any resulting impairment rendered C.B. permanently incapable of self-support. Based on the evidence of the record, at this time, entitlement to recognition of C.B. as a helpless child, on the basis of permanent incapacity for self-support prior to attaining the age of 18, is denied. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.