Citation Nr: 0000494 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 95-30 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to helpless child benefits on behalf of the appellant's son, [redacted], on the basis of permanent incapacity for self-support before attaining the age of 18. ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from November 1944 to October 1945. The appellant is his surviving spouse and the mother of [redacted]. It is shown that [redacted] was the veteran's son. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action by the Department of Veterans Affairs (hereinafter VA) Regional Office in San Juan, Puerto Rico, (hereinafter RO). FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The individual for whom benefits are sought, [redacted], son of the appellant and the veteran, was born in December 1971; his 18th birthday was in December 1989. 3. The veteran's service qualified him for pension benefits, which he was granted effective from 1973. He died in December 1985. 4. There is insufficient evidence to conclude that [redacted] was permanently incapable of self-support at or before he attained the age of 18. CONCLUSION OF LAW The criteria for entitlement to helpless child benefits on behalf of the appellant's son [redacted] on the basis of permanent incapacity for self-support before attaining the age of 18 are not met. 38 U.S.C.A. §§ 101, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.356 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the appellant has presented sufficient evidence to conclude that her claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The credibility of the appellant's evidentiary assertions is presumed for making the initial well-grounded determination. The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled as there is no indication that there are other records available that would be pertinent to the appellant's appeal. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In order to be eligible for entitlement helpless child benefits under 38 U.S.C.A. § 101, 38 C.F.R. § 3.356(a), the child must be shown to be permanently incapable of self- support by reason of mental or physical defect at the date of attaining the age of 18 years. Further pertinent criteria are listed at 38 C.F.R. § 3.356(b), which state as follows: Eligibility 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 by the rating agency on competent evidence of record in the individual case. Rating criteria applicable to disabled veterans are not controlling. 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. 38 C.F.R. § 3.356. The veteran was eligible prior to his death for pension benefits based on his active duty during World War II. Evidence of record indicated such benefits were granted for the veteran effective from 1973. The veteran died in December 1985. The child of the appellant and veteran for whom benefits are sought, [redacted], was born in December 1971. Thus, he attained the age of 18 in December 1989. Evidence of record reflects inpatient treatment for a few days in July 1981 for bronchial asthma. See e.g. December 3, 1991, medical certificate completed by Hilton Perez, M.D. The record also contains reference to treatment in an emergency room for bronchial asthma in June 1983, and treatment for dental caries and "mental retardation" in May 1989. Id. Other clinical evidence is of record, including that referencing treatment for bronchial asthma in 1981 and other times prior to 1989. Additional evidence dated in 1971 pertaining to pre-natal care and the premature delivery of [redacted] is of record. Evidence on file reveals, as noted, some treatment, including occasional hospitalization for bronchial asthma and other related breathing problems. It is also noted in these records that [redacted] had some "failure to thrive" and difficulty maintaining weight. Some of this was related to diet. After analyzing the evidence summarized above in light of the contentions of the appellant, the Board concludes that the claim must be denied. At the outset, the determination of the claimed status turns on evidence of the physical condition of [redacted] at age 18 or before. Dobson v. Brown, 4 Vet. App. 443 (1993). Considering first the statements of the appellant asserting that the [redacted] was "helpless" prior to his attaining the age of 18, the Board finds them to be of minimal probative value as there is no indication that the appellant has the medical expertise to determine whether the [redacted] was permanently incapacitated during his childhood as a result of illness or disability. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the appellant is competent to describe what she observed, there is no clinical opinion or other evidence of record to corroborate her assertion that [redacted] was permanently incapable of self- support at or before the age of 18. With regard to the other clinical evidence of record, there is simply insufficient evidence contained therein documenting that [redacted] had the severe medical, physical, or mental disability necessary to warrant entitlement to the benefits sought. The references to treatment, including a brief period of hospitalization, for bronchial asthma and other disabilities do not reflect that [redacted] was "permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18." The first clear mention or mental retardation is post the 18th birthday. It is shown that there were weight gain problems, but it is not shown that these were permanent, nor is it shown that they would preclude self-support. Further, there is no evidence on file of difficulties in education or in other motor skill development such as to permanently preclude self-support. In short, the record contains no clinical evidence or opinion from which it could reasonably be concluded that the criteria of 38 C.F.R. § 3.356 are met. Thus, as the Board finds the "positive" evidence as to the existence of a permanently incapacitating disability before [redacted] attained the age of 18 to be overcome by the "negative" evidence of record, the claim must be denied. Gilbert, 1 Vet. App. at 49. (CONTINUED ON NEXT PAGE) ORDER Entitlement to helpless child benefits on behalf of the appellant's son, [redacted], on the basis of permanent incapacity for self-support before attaining the age of 18 is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals