Citation Nr: 0000297 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 93-27 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Basic eligibility for Department of Veterans Affairs Dependency and Indemnity Compensation benefits based on the appellant's alleged status as the helpless child of a veteran. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran served on active duty from July 1965 to January 1977. As the veteran died while in service in January 1977, the appellant, a surviving son, born in 1959, was awarded dependency and indemnity compensation benefits under 38 U.S.C.A. § 1310 (West 1991). This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from the Department of Veterans Affairs (hereinafter VA) regional office in Montgomery, Alabama (hereinafter RO). FINDING OF FACT At the time of his 18th birthday, the appellant was not permanently incapable of self-support. CONCLUSION OF LAW The criteria for VA benefits based on the appellant's status as the helpless child of a veteran have not been met. 38 U.S.C.A. § 101 (West 1991); 38 C.F.R. §§ 3.57, 3.356 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant has filed a claim seeking Dependency and Indemnity Compensation benefits based on the veteran's death. Such benefits are available only to certain survivors of deceased veterans. 38 U.S.C.A. § 1310 (West 1991). With certain exceptions, children of a veteran do not qualify as legally valid claimants for Dependency and Indemnity Compensation benefits after they have attained the age of 18. 38 U.S.C.A. § 101(4)(A). The appellant was born in 1959; he is currently more than 40 years of age. One of the principal exceptions to the 18-year age limit for an eligible "child" of a veteran, and the one which is directly at issue in the present appeal, pertains to an unmarried, legitimate child of a veteran "who, before attaining the age of eighteen years, became permanently incapable of self-support" by reason of mental or physical defect. 38 U.S.C.A. §§ 101(4)(A)(ii); 38 C.F.R. § 3.356(a). This requires an initial determination as to the claimant's condition at the delimiting age. If the claimant is shown to have been capable of self-support at 18, the Board need go no further. Dobson v. Brown, 4 Vet. App. 443, 445 (1993). In the instant case, the evidence of record reveals that the appellant incurred a cerebral concussion in 1973, due to a head trauma. There was a question of an early right-sided papilledema, but on examination, this was not found. In 1975, the appellant was hospitalized for intoxication. It was noted that the appellant had a behavior disorder of adolescence. In 1978, the appellant was admitted for hospitalization for evaluation and treatment of depression and drug abuse. The veteran gave a history of surgery in 1973 for a strabismus. He was diagnosed with a hysterical personality, depressive neurosis with a questionable bipolar affective disorder, and a specific learning disorder, reading. The examiner felt the appellant was experiencing a "very severe grief reaction which may be predicated on a basic foundation of an affective disorder." In 1979, the appellant was noted as learning disabled (reading and arithmetic), with recurrent suicidal thoughts, insomnia, and his judgment, orientation, memory, abstract thinking, and calculation were reported as intact but on the "almost retarded side." The diagnoses were unipolar affective disorder and hysterical personality, as well as learning disability. Records from the Social Security Administration reveal that the appellant applied for benefits and was examined in 1979. The appellant reported that he began taking drugs when he was 10 years old. It was noted that the appellant's speech was goal oriented, but mildly defective. He was oriented to time, place and person, with no delusions or hallucinations. The impression was possible mental retardation and drug abuse, with episodes of depression and drug psychosis. At that time, the examiner found the appellant was not disabled. In 1980, he again applied for benefits from the Social Security Administration, due to asthma, headaches, and an erratic heartbeat. Psychological examination in 1980, reported complaints of hallucinations, which the psychologist noted as possibly being indicative of a schizophrenic process, but could be due to drug abuse. Intellectual deficits were reported. The Social Security Administration found schizophrenia, and noted that the evidence did not support this diagnosis or that the appellant became disabled prior to February 1980. The appellant was hospitalized in 1987 after a fight with family members. It was noted that the appellant was in a rage and had been making homicidal threats, and had suicidal fears. It was noted that the appellant had dropped out of school when he was in 11th grade. The appellant stated that he had attended community college for auto mechanic training prior to receiving benefits from the Social Security Administration. The diagnostic impression was explosive personality, borderline intelligence, and "rule out" seizure disorder. Also in 1987, diagnoses included adjustment disorder with mixed disturbance of emotions and conduct. The next month the appellant was admitted for an overdose of Trilafon. The diagnoses included depression. In 1988, the appellant was admitted with loose associations and tangentiality with focused thinking. Insight was poor, and his judgment was impaired. Intelligence was low normal. The impression was a brief reactive psychosis. On discharge, the diagnosis was bipolar disorder, manic type. The next month, the appellant took an overdose of Haldol. The diagnoses included bipolar disorder, manic type, and inadequate personality. Private medical records in 1994 reported a diagnosis of bipolar affective disorder, but noted that the appellant's mental status examination was within normal limits. The evidentiary record, as summarized above, does not demonstrate that the appellant became permanently incapable of self support on or before his 18th birthday in 1977. Although it is noted that the appellant had behavioral problems prior to his 18th birthday, this does not establish that such symptoms rendered him permanently incapable of self-support at that time. Evidence that the appellant became incapable of self-support at some later point in time is not material to the issue presented here. As the preponderance of the evidence is against the appellant's claim as the helpless child of a veteran, he is not now eligible for Dependency and Indemnity Compensation benefits. ORDER Th claim for VA Dependency and Indemnity Compensation benefits based on the appellant's alleged status as the helpless child of a veteran is denied. JOY A. MCDONALD Acting Member, Board of Veterans' Appeals