BVA9507170 DOCKET NO. 91-49 674 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to recognition of the appellant as a "child" of the veteran for the purposes of VA benefits. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran, who died in August 1959, served on active duty from July 1952 to November 1956. The appellant, his son, was born on July [redacted] 1959. In April 1990, the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, denied the veteran VA benefits, because he was not found to be a child of the veteran. He disagreed with that decision, and this appeal ensued. In April 1992, the Board of Veterans' Appeals (Board) remanded the case for further development. The Board requested that the appellant submit a certified copy of his divorce decree. If he was found not to be married, the RO was to render a determination whether he qualified as a helpless child. Following the requested development, the RO confirmed and continued its decision that the veteran was not a child of the veteran for the purposes of VA benefits. Thereafter, the case was returned to the Board for further appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that he is the veteran's child; that he has suffered severe emotional problems since well before his 18th birthday; that those problems have permanently rendered him incapable of self-support; and that he should, therefore, qualify for VA benefits as a helpless child. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the appellant's claim that he is a child of the veteran for the purposes of VA benefits. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the VA. 2. The veteran is over the age of eighteen and unmarried. 3. The veteran did not become permanently incapable of self support, prior to attaining his eighteenth birthday. CONCLUSION OF LAW The appellant does not meet the requirements for being declared a child of the veteran for the purposes of VA benefits. 38 U.S.C.A. § 101(4) (West 1991); 38 C.F.R. § 3.356 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the appellant's claim to be declared a child of the veteran is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim which is not implausible. The Board is also satisfied that all reasonable efforts have been expended to develop the evidence. A report from the Oregon State Board of Health shows that the appellant was born on July [redacted] 1959, and that the veteran was his father. Several weeks later, the veteran was killed in a motorcycle accident. Thereafter, the appellant was granted death pension benefits as a dependent of the veteran. Those benefits were terminated when the appellant turned eighteen. He now seeks to have those benefits restored, due to the fact that he is a helpless child of the veteran, that is, he is incapable of self support. The "child" of a deceased veteran is entitled to pension benefits, when, as here, the veteran met the service requirements prescribed in 38 U.S.C.A. § 1521(j) (West 1991) and when the appropriate income requirements are met. See 38 U.S.C.A. §§ 1541, 1542 (West 1991). A "child," under 38 U.S.C.A. § 101 (West 1991), includes an unmarried person who, "before attaining the aged of eighteen years, became permanently incapable of self- support...." 38 U.S.C.A. § 101(4)(A)(ii) (West 1991). Similarly, 38 C.F.R. § 3.356 (1994) 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) (1994). See Dobson v. Brown, 4 Vet.App. 443, 445 (1993). The appellant is over 18 and is the legitimate son of the veteran. Court records show that he was divorced in June 1990, and there is no evidence that he has remarried. Therefore, he must show that prior to the age of eighteen, he became permanently incapable of self-support. Under 38 C.F.R. § 3.356 (1994), The question of permanent incapacity for self-support is one of fact based on competent evidence of record. 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 incapacity or 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 parents. (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. In 1989 and 1992, several lay statements were received from various family members and acquaintances of the appellant. Some indicate that they had known him for many years and that he has always had difficulty handling people, even before his eighteenth birthday. In July 1989 and September 1992, his mother reported that he had had drug problems and been schizophrenic since the age of thirteen. That same month, V.P. Croy stated that she had known the veteran since he was eleven or twelve; that he had always been a societal outcast; that he had never gotten along with others and lived in his own world; that he would always be in need of guidance; and doubted that he would ever be able to function normally in society. While lay personnel may report any manifestations they have observed, they are not qualified to render diagnoses or prognoses nor are they qualified to render an opinion as to the onset or duration of a particular disorder. Such conclusions require expert medical opinion. Espiritu v. Derwinski, 2 Vet.App. 492 (1992), Grotveitt v. Brown, 5 Vet.App. 91(1993). Multiple psychological assessments, performed in the late 1980's, reveal that the appellant has borderline intellectual functioning and a borderline personality disorder, as well as a history of drug and alcohol abuse. In October 1987, Daniel V. Voiss, M.D., noted that the appellant had been severely beaten and abused as a child and that he had started the use of drugs by age eight. Dr. Voiss also noted that the appellant was emotionally labile with limited emotional controls and that he had a serious life-long psychological disability. He concluded that the appellant's psychiatric instability was his stationary state and recommended that he not return to work. While the Board does not doubt the thoroughness of Dr. Voiss's examination and assessment, it is apparent that the history was gleaned from the appellant himself rather than a review of the record. Three field examinations, conducted by the VA prior to the appellant's eighteenth birthday, show that he lived alternately with his mother and with his grandparents. Reportedly, there was friction between the appellant and his mother. He did not like school and was not a good student. Ultimately, he quit high school before receiving his diploma. Despite his academic problems, there were no findings of permanent disability or that he would be incapable of self-support. Indeed, during the November 1974 examination, the examiner stated that the appellant appeared to have no particular needs at that time. During the January 1976 examination, the examiner reported that since quitting high school, the appellant had attempted to attain some type of job but noted that he had not picked up an vocational skill or been able to obtain any form of meaningful employment. It was noted that he helped his buddies care for their cars or helped his mother around the house. Otherwise, he simply hung around the house and watched television. The examiner stated that the appellant did not appear to have any observable physical or mental disabilities and that helpless child benefits did not seem to be applicable. Following the November 1976 examination, the investigator concluded that the appellant seemed to be enjoying his environment and was in a stable situation living with his grandparents. None of the examiners found any need for VA supervision. In January 1978, shortly after his eighteenth birthday, the appellant joined the Oregon National Guard. On his Application for Enlistment, he reported that he had been employed as a "taper" since 1976. He also responded in the negative when asked if he had ever taken any narcotic substance, sedative, stimulant, or tranquilizer drugs, except as prescribed by a licensed physician; intentionally sniffed glue, paint, hair spray, or other chemical fumes; or been involved in the use, purchase, possession, or sale of marijuana, LSD, or any other harmful or habit-forming drugs and/or chemicals, except as prescribed by a licensed physician. He also denied ever having been a patient (whether or not formally committed) in any institution primarily devoted to the treatment of mental, nervous, emotional, psychological, or personality disorders. On the Report of Medical History (Standard Form 93), completed in conjunction with his enlistment examination, the appellant stated that he was in good general health. He responded in the negative when asked if he then had, or had ever had, frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. During the examination, the only abnormalities reported were as follows: "Tonsils out", scars on his left thigh and ankle, a tattoo on his left forearm, severe acne on his back and shoulders, and moderate acne on his face. A psychiatric evaluation was reported as normal. The appellant was honorably discharged from the National Guard after a little more than two months. Although he now states that his discharge was due to a mental disorder, National Guard records show that it was due to excess weight. Indeed, such records are completely negative for any recorded complaints or clinical findings of a psychiatric disorder of any kind. Since his time with the National Guard, the veteran has held various jobs, including janitor, cannery worker, kitchen helper, security guard, general laborer, heavy equipment operator, and various jobs in the construction business. Such jobs do not reveal an individual incapable of self-support. There are no findings that he left any of those jobs due to a permanent disability which he acquired prior to the age of eighteen. On balance, the foregoing evidence shows that the appellant was not permanently incapable of self-support prior to his eighteenth birthday. Despite recent psychological assessments and lay statements that he had a serious lifelong psychiatric disorder , the records dated prior to and shortly after his eighteenth birthday, are negative for such a disorder. Indeed, they are negative for any type of permanent disability prior to the age of eighteen years. Moreover, he apparently attained work as a taper prior to his eighteenth birthday, work which he held for approximately two years. Such evidence does not bespeak an individual who was helpless or otherwise incapable of self- support. Absent such a finding, the Board finds no reasonable basis for the benefits sought on appeal. ORDER The appellant's claim to be declared a child of the veteran for the purposes of VA benefits is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.