Select Page

M21-1, Part III, Subpart iii, Chapter 7 – A Child’s Permanent Incapacity for Self-Support

Overview


In This Chapter

 This chapter contains the following topics:
Topic
Topic Name
1
2
3
4
5

1.  General Information on a Child’s Permanent Incapacity for Self-Support


Introduction

This topic contains general information on a child’s permanent incapacity for self-support,  including

Change Date

 February 19, 2019

III.iii.7.1.a.  Basic Eligibility Requirements

In order to warrant initial or continued consideration as a dependent child for Department of Veterans Affairs (VA) purposes, any individual over the age of 18 who is not pursuing a course of instruction at an approved educational institutionmust be shown to have become permanently incapable of self-support by reason of mental or physical defect before attaining age 18.  A dependent meeting these criteria is also commonly referred to as a helpless child.
Reference:  For more information on general requirements to be considered a child, see

III.iii.7.1.b.  Acceptability of Claims for a Child Permanently Incapable of Self-Support

Effective March 24, 2015, a claim for benefits for a child permanently incapable of self-support must be received on one of the prescribed forms listed in M21-1, Part III, Subpart ii, 2.B.1.b.
Use the table below to determine what action to take when communication on something other than a prescribed form is received indicating permanent incapacity for self-support of a child of a Veteran.
If the correspondence is received …
Then treat the correspondence as a …
prior to March 24, 2015
claim.
on or after March 24, 2015
request for application.
Note:  This block also applies to the contention of a child’s incapacity for self-support when received more than three months prior to the child’s 18th birthday.
References:  For more information on

III.iii.7.1.c.  Information Necessary to Establish the Extent of the Child’s Disability

The information necessary to establish the extent of the child’s disability includes
  • the extent to which the child is and was, prior to reaching his/her 18th birthday, physically or mentally deficient, as evidenced by factors such as his/her ability to perform
    • self-care functions, and
    • ordinary tasks expected of a child of that age
  • whether or not the child attended school and, if so, the maximum grade attended
  • if any material improvement in the child’s condition has occurred
  • if the child has ever been employed and, if so, the
    • nature and dates of such employment, and
    • amount of pay received
  • whether or not the child has ever married, and
  • a description of the child’s present condition.

III.iii.7.1.d.  Reporting Facts Based on Personal Observation

The persons making statements pertaining to the child’s permanent incapacity for self-support should give detailed information of the facts known to them personally in regard to the child’s
  • mental and physical condition when the child attained the age of 18 years, and
  • present condition.
Important:  All statements should indicate the basis of the knowledge of the facts reported and include the name and signature of the person making the statement.

III.iii.7.1.e.  Handling Claims Received More Than Three Months Prior to the Child’s 18thBirthday

Do not request evidence or refer a claim to the rating activity more than three months prior to the child’s 18th birthday.
If a claim for a child’s permanent incapacity for self-support is received more than three months prior to the child’s 18th birthday
  • inform the claimant that consideration will be deferred, and
  • use diary code 30 (Local Regional Office Special Use) to establish control for future development, if necessary, and referral of the claim to the rating activity approximately three months prior to the child’s 18th birthday.
Notes:
  • If the contention of a child’s permanent incapacity for self-support is prematurely communicated on something other than a prescribed form, treat the correspondence as a request for application as discussed inM21-1, Part III, Subpart iii, 7.1.b.  Do not inform the claimant of the deferral of consideration or establish local diary control in the absence of a valid claim on a prescribed form.
  • At the time when the rating activity reviews the case, if the child’s disability is considered permanent in nature, the rating activity may order an examination without requiring any other medical evidence.
References:  For more information on

III.iii.7.1.f.  Responding to Maturation of the Local 18thBirthday Diary

Upon maturation of a local diary established in compliance with M21-1, Part III, Subpart iii, 7.1.e
  • establish an end product (EP) 020, Helpless Child, using the date of the corresponding 800 series work item’s generation as the date of claim
  • accomplish any necessary development, to include issuance of a standard Section 5103 notice, if appropriate, and
  • refer the claim to the rating activity.
Reference:  For more information on developing for evidence of permanent incapacity for self-support, see M21-1, Part III, Subpart iii, 7.2.a.

III.iii.7.1.g.  Handling Claims Unaccompanied by Evidence Required to Concede Status as a Child

Follow the instructions in the table below if a claim for benefits for a child the claimant alleges is permanently incapable of self-support is not accompanied by evidence necessary to establish the child’s age and relationship, as outlined inM21-1, Part III, Subpart iii, 5.F.
Step
Action
1
  • Undertake any and all development necessary under M21-1, Part III, Subpart iii, 5.A.
  • Allow the claimant 30 days to provide the missing information/evidence.
  • Proceed to the next step after the response period expires or the claimant responds to the development letter, whichever occurs first.
2
Was the information/evidence requested in Step 1 received?
  • If yes, refer the claim to the rating activity for resolution of the question of the child’s permanent incapacity for self-support.
  • If no,
    • deny the claim on the basis of insufficiently demonstrated relationship, andnotify the claimant that the claim was decided on that basis alone.
Reference:  For more information on decision notice requirements, see M21-1, Part III, Subpart v, 2.B.1.b.

2.  Developing for and Determining Permanent Incapacity for Self-Support


Introduction

This topic contains information on developing for and determining permanent incapacity for self-support, including

Change Date

February 19, 2019

III.iii.7.2.a.  When to Request Evidence of Permanent Incapacity for Self-Support

Use the table below to determine when to request evidence in support of a claim for permanent incapacity of self-support.
When the claim is submitted on a(n) 
Then …
prescribed non-EZ form
send a Section 5103 notice only if
  • no such notice has been sent within the year prior to the date of claim, and
  • the benefit cannot be granted on the evidence of record.
EZ form
do not send a Section 5103 notice.  A decision on the claim may be made without any additional development.
Note:  This guidance applies not only to fully developed claims (FDCs), but also to claims self-excluded from the FDC process.
follow the guidance in M21-1, Part III, Subpart ii, 2.D.1.e.
References:  For more information on

III.iii.7.2.b.  Determining if a VA Examination Is Necessary to Determine Permanent Incapacity for Self-Support

A VA examination is not routinely required to determine a child’s permanent incapacity for self-support.  However, one may be requested if the rating activity determines such action necessary to resolve
  • insufficient evidence of record, or
  • conflicting evidence.

III.iii.7.2.c.  Rating Activity Considerations in Claims for Permanent Incapacity for Self-Support

Rating determinations will be made on the basis of whether the child
  • is permanently incapable of self-support through his/her own efforts due to physical or mental disabilities, and
  • became so disabled prior to reaching his/her 18th birthday.
The question of permanent incapacity is one of fact for determination by the rating activity based on competent evidence of record.
The rating activity considers entitlement under 38 CFR 3.356 if the evidence of record
  • establishes
    • prima facie entitlement, and/or
    • a reasonable probability of a valid claim that would warrant a request for a VA examination or other development, and/or
  • is sufficient to make a decision either to allow or deny benefits.
References:  For more information on

III.iii.7.2.d.  Rating Activity Action to Resolve the Claim

Use the table below to determine what rating action is needed to resolve a claim for a child’s permanent incapacity for self-support once developmental efforts have concluded.
If evidence in connection with a claim for a child’s permanent incapacity for self-support …
Then the rating activity will …
sufficiently justifies entitlement under 38 CFR 3.356
does not sufficiently justify entitlement under 38 CFR 3.356
deny permanent incapacity for self-support.
is deemed insufficient to resolve the issue in question
defer a decision on incapacity for self-support, directing what additional development need be undertaken.
has been requested, but not received
deny the claim, indicating that the claimant did not
  • furnish evidence as requested, or
  • provide evidence sufficient to demonstrate the child’s permanent incapacity for self-support.
Important:  Despite the claimant’s failure to respond to developmental requests for supporting evidence, the rating activity may establish permanent incapacity for the child’s self-support if the claims folder otherwise contains medical or lay evidence sufficient to justify entitlement.

III.iii.7.2.e.  Scheduling Re-examinations in Rare Cases Involving Permanent Incapacity for Self-Support

Following a determination of permanent incapacity for self-support, the rating activity may request a re-examination or other form of development, but only under the most unusual of circumstances when evidence compellingly supports the notion that the child may become capable of self-support in the future.
Any re-examination deemed necessary by the rating activity must be
  • fully justified in the rating decision’s narrative, and
  • scheduled within not less than two years, but not more than five years, following the finding of permanent incapacity for self-support.
In a case involving a future examination or developmental control,
  • establish a diary code 03 (Helpless Child Review), and
  • upon expiration of the control, establish EP 020, 120, or other appropriate EP control, and refer the case to the rating activity for a decision as to whether or not to
    • schedule an examination, or
    • refer the case to the authorization activity for further development of the child’s current status.
Note:  If the future diary is not cleared timely, the Veterans Service Network will establish an 800 series work item indicating that the action is due.
References:  For more information on

3.  Awarding and Denying Benefits Based on Dependency of a Child Permanently Incapable of Self-Support


Introduction

This topic contains information on awarding and denying benefits based on dependency of a child permanently incapable of self-support,  including

Change Date

February 19, 2019

III.iii.7.3.a.  Child Permanently Incapable of Self-Support Awards Involving Disability Compensation

If the Veteran qualifies for additional compensation on behalf of dependents, add additional allowance for a child determined to be permanently incapable of self-support.
Note:  Handle an apportionment for a child permanently incapable of self-support in the same manner as for a minor child, but do not use a future discontinuance date.
References:  For more information on

III.iii.7.3.b.  Child Permanently Incapable of Self-Support Awards Involving Veterans Pension

A child permanently incapable of self-support is a dependent in protected pension cases when determining a Veteran’s statutory income limitation.  In current-law cases, such a child is a dependent for the purpose of determining monthly payments.
Reference:  For more information on establishment of a child in current-law pension cases, see M21-1, Part V, Subpart iii, 1.F.1.c.

III.iii.7.3.c.  Child Permanently Incapable of Self-Support Awards Involving Survivors Pension

Add the additional amount to the surviving spouse’s award, if
  • the surviving spouse is receiving Survivors Pension, and
  • an additional allowance is found to be payable for a child permanently incapable of self-support.
Reference:  For more information on Survivors Pension, see M21-1, Part III, Subpart ii, 2.A.2.b.

III.iii.7.3.d.  Child Permanently Incapable of Self-Support Awards Involving DIC

Make a separate award to or for the child in his/her own right, for Dependency and Indemnity Compensation (DIC) payments to children over age 18 by reason of permanent incapacity for self-support, even though the surviving spouse may
  • be receiving DIC benefits in his/her own right, and
  • have custody of the child.
Reference:  For more information on DIC, see M21-1, Part IV, Subpart iii, 3.

III.iii.7.3.e.  Establishing an Effective Date for a Child  Permanently Incapable of Self-Support

When awarding a claim for a child permanently incapable of self-support, the rating activity must assign an effective date for entitlement in the Veterans Benefits Management System-Rating (VBMS-R).  The authorization activity determines the payment date.
Consideration must be given to
  • the type of claim filed
  • the date of claim, and
  • when the child turned 18.
References:  For more information on

III.iii.7.3.f.  Preparing an Award

For information on how to prepare an award to or for a minor, or a child who is both permanently incapable of self-support and incompetent, see M21-1, Part III, Subpart v, 9.C.2.
References:  For more information on

III.iii.7.3.g.  Handling Notification of Decisions

After VA decides a claim for benefits for a child the claimant alleges is permanently incapable of self-support, provide the claimant a decision notice that conforms to the requirements of M21-1, Part III, Subpart v, 2.B.1.
Reference:  For more information on the denial of benefits, see M21-1, Part III, Subpart v, 2.A.3.

4.  Reconsidering the Status of a Child Deemed Permanently Incapable of Self-Support


Introduction

This topic contains information on reconsidering the status of a child deemed permanently incapable of self-support, including

Change Date

May 18, 2017

III.iii.7.4.a.  Consequences of the Marriage of a Child Permanently Incapable of Self-Support

Marriage of a child permanently incapable of self-support discontinues entitlement to benefits, except in the case of a child of a Spanish-American or Indian War Veteran.
Under the laws in effect prior to April 1, 1944, the marriage of children of Spanish-American or Indian War Veterans
  • merely creates a presumption that the child is no longer permanently incapacitated, and
  • under 38 CFR 3.950, positive proof of continuing incapacity can overcome the presumption.
Reference:  For more information on developing for permanent incapacity for self-support, see M21-1, Part III, Subpart iii, 7.2.

III.iii.7.4.b.  Discontinuing an Award Due to Marriage

Upon receipt of a notice of the marriage of a child permanently incapable of self-support, discontinue the award to or for the child as of the first day of the month in which the marriage occurred.  It is not necessary to refer the claim to the rating activity.
References:  For more information on

III.iii.7.4.c.  Restoring the Award if the Marriage Is Dissolved

Use the table below to determine when to restore an award if the marriage of a child permanently incapable of self-support is dissolved.
If the marriage of a child permanently incapable of self-support was terminated by death or divorce …
Then the benefits of the child …
prior to November 1, 1990
can be restored.
Note:  The criteria of 38 CFR 3.356 must be
  • determined to have been continued through the duration of the marriage, and
  • expected to continue in the future.
Reference:  For more information on a marriage of a child permanently incapable of self-support terminated by death or divorce prior to November 1, 1990, see
on or after November 1, 1990
cannot be restored after marriage unless the marriage is
  • annulled, or
  • determined to be void.
Reference:  For more information on criteria necessary to restore benefits, see 38 CFR 3.55(b)(1).

III.iii.7.4.d.  Handling Subsequent Findings of Competency

If certification by the Veterans Service Center Manager (VSCM) or Pension Management Center Manager (PMCM) or other evidence is received, showing that a child permanently incapable of self-support formerly adjudged incompetent has been held by a court of jurisdiction to be competent, refer the case to the rating activity for consideration of the issue of continued permanent incapacity for self-support.
References:  For more information on

III.iii.7.4.e.  Handling Discontinuance of a Surviving Spouse’s Entitlement

Use the table below to determine the action to take if an award of DIC or Survivors Pension to a surviving spouse, which includes benefits for a child permanently incapable of self-support, is discontinued because the surviving spouse is no longer entitled.
If the eligibility of a child permanently incapable of self-support is based on …
Then …
a determination of mental impairment
refer the claim to the rating activity to determine whether
  • the incapacity was based on mental impairment
  • there is some other indication of incompetence, and
  • the child is still permanently incapable of self-support.
Note:  If the rating activity determines the child to be competent to handle his/her own funds, benefits may be paid directly to the child.
References:  For more information on the action taken concerning the surviving spouse’s award
a determination of physical impairment
authorize payment to or on behalf of the child, without referral to the rating activity, as described in

5.  Discontinuance of Benefits When Child Is No Longer Permanently Incapable of Self-Support


Introduction

This topic contains information on discontinuance of benefits when a child is no longer permanently incapable of self-support, including

Change Date

May 18 2017

III.iii.7.5.a.  Protection of Disability Ratings Under 38 U.S.C. 110

Disability ratings are provided some protection from reduction under 38 U.S.C. 110.  This protection does not apply to a rating of permanent incapacity for self-support.

III.iii.7.5.b.  Considering Qualification Under School Attendance Provisions

Determine whether the child may be entitled to benefits as a schoolchild before discontinuing benefits based on a child’s permanent incapacity for self-support.

III.iii.7.5.c.  Procedure for Reducing or Discontinuing Benefits

Follow the steps in the table below if information is received that the child has obtained employment or otherwise regained capacity for self-support, and it is determined necessary to reduce or discontinue benefits.
Step
Action
1
Develop to obtain the following information about the child from the beneficiary:
  • the nature of the child’s employment and income, and
  • whether or not the child’s employment is
    • full time
    • permanent
    • temporary, or
    • therapeutic.
2
  • Extend the suspense date 60 days from the date of the development letter under
    • EP 020 (if the beneficiary is entitled to disability compensation), or
    • EP 120 (if the beneficiary is entitled to pension).
  • Proceed to the next step when the response period expires or when the beneficiary responds to the development letter,whichever occurs first.
3
Refer the case to the rating activity for a determination as to whether or not the child is still permanently incapable of self-support.
4
Has the rating activity confirmed the child remains permanently incapable of self-support?
  • If yes,
    • notify the beneficiary of the decision, and
    • disregard the remaining steps in this table.
  • If no, proceed to the next step.
5
  • Send the beneficiary notice of proposed adverse action thatinforms the beneficiary of
    • VA’s proposal to remove the child from the beneficiary’s award because the child is no longer permanently incapable of self-support
    • the evidence VA considered in making its decision
    • the basis for the decision
    • the beneficiary’s procedural rights, and
    • that VA will take the proposed action unless he/she provides evidence within 60 days showing the child remains permanently incapable of self-support.
  • Proceed to the next step when the beneficiary responds to the notice of proposed action or 65 days after sending the notice of proposed adverse action, whichever occurs first.
Note:  If the beneficiary requests a hearing within 30 days of the date of the notice of proposed adverse action, proceed to the next step only after VA
  • holds the hearing, and
  • completes any other necessary development actions.
6
Refer the case to the rating activity.
7
Does the formal rating decision affirm that the child is now capable of self-support?
  • If yes, proceed to the next step.
  • If no,
    • notify the beneficiary of VA’s determination that the child remains permanently incapable of self-support, and
    • disregard the remaining steps in this table.
8
Is the beneficiary entitled to pension?
  • If yes, proceed to the next step.
  • If no, proceed to Step 10.
9
  • Remove the child from the beneficiary’s award effective the date in the LAST PAID DATE field on the AWARD INFORMATION tab in Share.
  • Notify the beneficiary of the action taken.
  • Disregard the remaining steps in this table.
10
Prepare a decision notice that
  • informs the beneficiary of VA’s determination that the child is now capable of self-support, and
  • informs the beneficiary that VA will remove the child from the beneficiary’s award effective the first of the month following the month in which a 60-day time period that commences on the date of the decision notice ends.
11
Remove the child from the beneficiary’s award effective the date of removal indicated in the decision notice.
References:  For more information on
  • the date of discontinuance of an award to a child permanently incapable of self-support, see 38 CFR 3.503(a)(3), and
  • notice of proposed adverse action requirements, see M21-1, Part I, 2.B.2.
Historical_M21-1III_iii_7_9-9-16.doc May 12, 2019 159 KB
Historical_M21-1III_iii_7_7-14-17.doc May 12, 2019 174 KB
Historical_M21-1III_iii_7_7-11-15.doc May 12, 2019 129 KB
Historical_M21-1III_iii_7_5-18-17.doc May 12, 2019 169 KB
7-14-17_Key-Changes_M21-1III_iii_7.docx May 12, 2019 67 KB
5-18-17_Key-Changes_M21-1III_iii_7.docx May 12, 2019 82 KB
2-19-19_Key-Changes_M21-1III_iii_7.docx May 12, 2019 61 KB
Historical_M21-1III_iii_7_07-11-2015.docx May 12, 2019 58 KB
Change-July-11-2015-Transmittal-Sheet-M21-1III_iii_7_TS.docx May 12, 2019 41 KB
transmittal-sheet.doc May 12, 2019 77 KB
Change-March-24-2015-Transmittal-Sheet-M21-1MRIII_iii_7_TS.docx May 12, 2019 39 KB
Did this article answer your question?

Leave a Reply





Pin It on Pinterest

Share This