Citation Nr: 0812340 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-00 801 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Whether the veteran's daughter is entitled to recognition as a helpless child on the basis of permanent incapacity for self-support prior to attaining the age of 18 years. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The veteran had active military service from April 1967 to January 1970. This case was remanded by the Board of Veterans' Appeals (Board) in January 2007 to the agency of original jurisdiction (AOJ) for additional development. As noted in the January 2007 Board remand, this claim for recognition of the veteran's daughter M as a helpless child has been pending since September 1997. For the reasons indicated hereinbelow, the case is being remanded to the AOJ via the Appeals Management Center in Washington, DC. REMAND In its January 2007 remand, the Board noted that the evidence on file was inadequate to make a reasoned determination of the issue on appeal because there was no medical opinion on whether M could be considered a helpless child for VA benefit purposes, meaning permanently incapable of self-support as of her 18th birthday. Although there is medical evidence on file dated prior to November [redacted], 1994, M's 18th birthday, that M had systemic lupus erythematosus with pulmonary fibrosis and Hermanski Pudlack albinism, there is no medical opinion on whether M's condition at that time would prevent employment. Consequently, this case was remanded to obtain an opinion from an appropriate VA health care provider, based on review of the claims file, as to whether M was permanently incapable of self-support on her 18th birthday. Unfortunately, it appears from the record that M was scheduled for an infectious disease/immune/nutritional examination. According to a June 2007 statement from a VA health care provider, the request for an examination could not be processed because information on the request form related to the veteran rather than to M and because there was no notation of why this particular examination had been requested. The Board would note, however, that the January 2007 remand requested a medical opinion based on a review of the claims file; it did not request an examination of M prior to this opinion. The United States Court of Appeals for Veterans Claims (the Court) has held that RO compliance with a remand is not discretionary, and that if the AOJ fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). Consequently, the Board finds that the AOJ did not adequately comply with the terms of the Board's January 2007 remand. Id. Moreover, a relevant February 2007 private medical statement was added to the claims file after the October 2007 Supplemental Statement of the Case without a waiver of initial AOJ consideration; this evidence does not appear to have been considered by the AOJ in the October 2007 Supplemental Statement of the Case. See 38 C.F.R. § 19.37 (2007). Finally, the Board notes that although the veteran was asked in a March 2007 VA letter to provide an appropriate employment and educational history for M, no information has been provided. Accordingly, the claim is again REMANDED to the AOJ for the following actions: 1. The AOJ should take appropriate steps to contact veteran and ask him to provide an educational and employment history for M, especially prior to November 1994, to include any relevant records or documentation corroborating such history. 2. Thereafter, the claims file and a copy of the provisions of 38 C.F.R. § 3.356 (conditions which determine permanent incapacity for self-support) should be forwarded to an appropriate VA health care provider, who should review all records pertaining to the veteran's daughter M, including the February 2007 private medical statement, and offer an opinion as to whether it is at least as likely as not that she was permanently incapable of self-support due to physical or mental disability on November [redacted], 1994, her 18th birthday. The health care provider should indicate that the records were reviewed and provide a complete rationale for all opinions offered. 3. Thereafter, the AOJ should readjudicate the claim based on all the evidence of record and all governing legal authority, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).