Citation Nr: 0000429	
Decision Date: 01/06/00    Archive Date: 01/11/00

DOCKET NO.  98-08 791A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, 
California


THE ISSUE

Whether the veteran's son became permanently incapable of 
self-support prior to attaining the age of 18 years. 


ATTORNEY FOR THE BOARD

J. L. Prichard, Counsel


INTRODUCTION

The veteran had active duty for training purposes from 
February 1966 to June 1966.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of rating decisions of the Oakland, 
California, regional office (RO) of the Department of 
Veterans Affairs (VA).  

The record indicates that the veteran was scheduled for a 
hearing before the Board in November 1999.  He did not report 
for this hearing, and has not requested that it be 
rescheduled.  

A Statement of the Case for the issue of whether the 
California State disability payments received by the veteran 
should be counted as income for VA purposes was issued in 
April 1998.  The veteran was notified at this time that in 
order to complete his appeal, he must file a formal appeal.  
The Substantive Appeal of record was received in June 1998, 
and was concerned solely with whether or not the veteran's 
son was incapable of self support before his 18th birthday.  
It did not address the issue of whether the veteran's 
disability payments should be counted as income for VA 
purposes.  An August 1999 rating action denied special 
monthly pension and increased a noncompensable rating to 10 
percent for low back strain.  There is no notice of 
disagreement of this determination of record.  Therefore, 
these matters are not on appeal to the Board.


FINDINGS OF FACT

The veteran has not submitted medical evidence to show that 
his son was incapable of self-support prior to the age of 18.


CONCLUSION OF LAW

The veteran has not submitted evidence of a well grounded 
claim for entitlement to VA benefits for the veteran's son on 
the basis that he was rendered permanently incapable of self- 
support prior to attaining 18 years of age.  38 U.S.C.A. §§ 
101(4)(a), 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.57, 
3.356 (1999). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran contends that his son was incapable of self-
support prior to the age of 18, and that on this basis, he is 
entitled to VA benefits.  He notes that his son currently 
suffers from what is believed to be schizophrenia, and he 
argues that as there is some evidence to show that 
schizophrenia may be the result of genetic predisposition, 
then the disability was present before his son's 18th 
birthday.  

A person who submits a claim for benefits under a law 
administered by the Secretary shall have the burden of 
submitting evidence sufficient to justify a belief by a fair 
and impartial individual that the claim is well grounded.  
38 U.S.C.A. § 5107.  A well grounded claim is a plausible 
claim, one which is meritorious on its own or capable of 
substantiation.  The claim does not need to be conclusive, 
but only possible in order to be well grounded.  Murphy v. 
Derwinski, 1 Vet. App.  78, 81 (1990).  The appellant has the 
burden of submitting evidence to show that the claim is 
plausible.  Tirpak v. Derwinski, 2 Vet. App.  609, 611 
(1992).

A child, for the purposes of entitlement to VA benefits, 
includes an unmarried person who, "before attaining the age 
of eighteen years, became permanently incapable of self- 
support . . . ." 38 U.S.C.A. § 101(4)(A)(ii); 38 C.F.R. § 
3.57(a)(ii).  See Campbell v. Brown, 5 Vet. App. 77, 78 
(1993).  The accompanying regulation, 38 C.F.R. § 3.356, 
similarly provides that a person may qualify as a "child," 
if he or she is "shown to [have been] permanently incapable 
of self-support by reason of mental or physical defect at the 
date of attaining the age of 18 years."  38 C.F.R. § 
3.356(a).

The focus of this decision must be on the condition of the 
veteran's son at the time of his 18th birthday; it is that 
condition which determines whether he is entitled to the 
status of child within the meaning of VA regulations.  
Therefore, VA must make an initial determination as to the 
veteran's son's condition at his delimiting age.  If he is 
shown to have been capable of self-support at 18, VA need go 
no further.  See Dobson v. Brown, 4 Vet. App. 443 (1993).

Rating determinations will be made solely on the basis of 
whether the child is permanently incapable of self-support 
through his own efforts by reason of physical or mental 
defects.  The question of permanent incapacity for self- 
support is one of fact for determination based on competent 
evidence of record. 38 C.F.R. § 3.356(b) (1998).  The fact 
the child is earning his own support is prima facie evidence 
that he is not incapable of self- support.  Incapacity for 
self-support will not be considered to exist when the child 
by his own efforts is provided with sufficient income for his 
or her reasonable support.  38 C.F.R. § 3.356(b)(1).

Employment of a child prior or subsequent to the delimiting 
age of 18 years 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.  38 C.F.R. § 3.356(b)(3). 

The veteran has submitted a copy of a birth certificate for 
his son.  This  shows that he was born on March [redacted], 1972.  
In order to receive the benefits sought on appeal, the evidence 
must show that the veteran's son was incapable of self-
support before March [redacted], 1990.  

The evidence includes an August 1997 statement from the 
principal of the veteran's son's High School.  This statement 
indicates that while the son was enrolled in High School, he 
participated in the special education program.  His learning 
disabilities were regularly reviewed and addressed.  The son 
graduated in June 1991. 

The veteran has also submitted private medical records dated 
July 1990, and from 1994 to 1995.  The July 1990 records show 
that the veteran's son was 18 years old, and was employed as 
a landscaper.  A history of mental illness was not noted.  He 
was hospitalized for treatment for injuries sustained in an 
automobile accident.  A general physical examination was 
negative for abnormality other than the residuals of injuries 
received in the accident.  The final diagnoses were 
contaminated laceration, right posterior ankle, including 
one-half of Achilles tendon, posterior tibial artery, and 
ankle joint penetration. 

The additional private medical records indicate that the 
veteran's son was seen after a display of unusual behavior in 
March 1994.  He did not have a past psychiatric history.  The 
tentative diagnostic impressions included rule out organic 
reactions to substance abuse and withdrawal, and rule out 
base psychotic episode.  Hospital records dated April 1995 
and May 1995 show that the veteran's son was admitted for 
treatment after a year with difficulty in functioning.  It 
was his first psychiatric hospitalization, but the treatment 
in March 1994 was noted.  He was noted to have a history of 
dyslexia and learning disabilities, but there was no history 
of a psychiatric disability prior to March 1994.  He had 
obtained a High School degree from an alternative school.  
The admitted diagnoses included probable schizophrenic 
disorder, undifferentiated, versus residual psychosis 
associated with unknown substance abuse, versus 
endocrinopathy and psychosis.  The examiner noted that there 
sounded like there might be some interesting learning 
disabilities, and maybe some pervasive developmental 
problems, but these could not be sorted out until the 
veteran's son became less paranoid.  He was determined to be 
gravely disabled.  The remaining records from April 1995 and 
May 1995 include the reports of additional evaluations.  
However, these records are negative for any evidence or 
opinion that, prior to his 18th birthday, the son had a 
psychiatric disability or was permanently incapable of self-
support.  

The Board finds that the veteran has not submitted evidence 
of a well grounded claim for entitlement to VA benefits for 
his son on the basis that he was rendered permanently 
incapable of self- support prior to attaining 18 years of 
age.  He has not submitted any medical evidence or opinion 
that purports to show that his son was permanently incapable 
of self support before his 18th birthday.  The only evidence 
that addresses the condition of his son prior to that age is 
the statement from the principal of the High School.  This 
statement shows that the son had learning disabilities, but 
that he completed his High School degree.  It does not 
contain any opinion suggesting that the son was incapable of 
self support.  The veteran has not submitted any medical 
evidence that addresses his son's condition prior to his 18th 
birthday.  The earliest medical evidence is dated July 1990, 
and shows treatment for an injury sustained in a car 
accident.  He was noted to be 18 and working at the time of 
the accident.  The remaining records show treatment for a 
psychiatric disability, without an opinion stating that the 
disability was manifested prior to the son's 18th birthday, 
or that he was otherwise incapable of self-support by March 
[redacted], 1990.  The Board notes the veteran's opinion that his 
son's psychiatric disability must have been present but 
latent prior to his 18th birthday.  However, this does not 
constitute evidence of an incapacity for self-support prior 
to the 18th birthday, and even if it did, the veteran is not 
a doctor, and is not competent to render such an opinion.  
Espiritu v. Derwinski, 2 Vet. App.  492 (1992).  Therefore, 
as the veteran has not submitted competent evidence tending 
to show that his son was incapable of self support prior to 
his 18th birthday, his claim is not plausible, and is not 
well grounded.  


ORDER

Entitlement to VA benefits based on the permanent incapacity 
of the veteran's son for self-support prior to attaining the 
age of 18 is denied.


		
	THOMAS J. DANNAHER
	Member, Board of Veterans' Appeals