Citation Nr: 0814330 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-07 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to recognition of the veteran's son as a "child" based on a finding of permanent incapacity for self-support before attaining the age of 18 years. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. N. Moats, Associate Counsel INTRODUCTION The veteran had active duty service from December 1954 to August 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in December 2003, a statement of the case was issued in February 2005, and a substantive appeal was received in March 2005. The Board notes that the issues of increased rating for the veteran's service-connected bilateral knee and low back disabilities as well as a total disability rating based on individual unemployability (TDIU) were also on a appeal from a June 2007 rating decision. However, a January 2008 rating decision granted maximum disability ratings of 60 percent for each knee and TDIU, which was considered a full grant of the benefits sought on appeal with respect to these issues. At the same time, the RO issued a statement of the case with respect to the issue of an increased rating for the veteran's service-connected low back disability. However, the veteran has not yet submitted a substantive appeal perfecting his appeal on this issue. Thus, this issue is also not before the Board at this time. FINDINGS OF FACT 1. The veteran's son was born in April 1985 and reached the age of 18 in April 2003 2. The veteran's son was not permanently incapable of self- support at the time he attained the age of 18 years. CONCLUSION OF LAW The criteria for entitlement to VA benefits based on the veteran's son's permanent incapacity for self-support prior to attaining the age of 18 are not met. 38 U.S.C.A. § 101(4)(A)(ii) (West 2002); 38 C.F.R. §§ 3.57, 3.356 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). The record shows that in a November 2004 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The Board also notes that the November 2004 VCAA letter notified the appellant of the need to submit any pertinent evidence in the appellant's possession. In this regard, the appellant was advised, at page 1, to submit any evidence in his possession that pertains to his claim. The Board concludes that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet.App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the veteran in November 2004, which was after the September 2003 rating decision. However, the deficiency in the timing of this notice was remedied by readjudication of the issue on appeal in the statement of the case and subsequent supplemental statement of the case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes private treatment records for the veteran's son. The Board notes that in February 2004, the RO requested the veteran's son's school records and sent an authorization form to the veteran to be completed so that the RO could obtain these records on the veteran's behalf. In the February 2005 statement of the case, the RO indicated that it could not consider information from the veteran's son's schools or mental health treatment because this information or a release form to obtain this information had not been provided by the veteran. Again, in August 2005, the RO requested additional information concerning the veteran's son's classes at school and any testing done. However, the veteran never submitted an authorization form or responded to any of these requests for this information. While VA has a duty to assist the veteran in the development of his claim, the veteran has a duty to cooperate with VA. See Wood v. Derwinski, 1 Vet.App. 190 (1991). Thus, in the instant matter, the Board finds the RO has satisfied its duty to assist the veteran. The Board concludes that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal. Analysis For purposes of entitlement to VA benefits, the term "child" includes a person who is unmarried and who, before attaining the age of 18 years, became permanently incapable of self- support. See 38 U.S.C.A. § 101(4); 38 C.F.R. § 3.57(a). A child of a veteran may be considered a "child" after age 18 for purposes of benefits under Title 38, United States Code, if found by a rating determination to have become, prior to age 18, permanently incapable of self- support. See 38 U.S.C.A. § 101(4). In order to be eligible for VA benefits under 38 U.S.C.A. § 101, 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. To establish entitlement, various factors under 38 C.F.R. §3.356 are for consideration. 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. The Court has held that in cases such as this, the "focus of analysis must be on the claimant's condition at the time of his or her 18th birthday." Dobson v. Brown, 4 Vet.App. 443, 445 (1993). In other words, for purposes of initially establishing helpless child status, the claimant's condition subsequent to his or her eighteenth birthday is not for consideration. However, if a finding is made that a claimant was permanently incapable of self-support as of his or her eighteenth birthday, then evidence of the claimant's subsequent condition becomes relevant for the second step of the analysis, that is, whether there is improvement sufficient to render the claimant capable of self-support. Id. If the claimant is shown to be capable of self-support at eighteen, VA is required to proceed no further. Id. In the present case, the veteran contends that his son is entitled to recognition as his child for VA purposes even though he is over the age of majority because he was permanently incapable of self-support at the time he turned 18 years of age. The veteran's son was born in April 1985, and turned 18 in 2003. In March 2003, the veteran submitted a Request for Approval of School Attendance indicating that his son was attending high school until June 2003. He also indicated that his son was disabled and would be incapable of self care. In support of his claim, the veteran has submitted private medical evidence, including a February 1998 treatment record for a routine follow-up that showed the veteran's son had cerebral palsy with spastic diplegia. The son was in school and having no problems according to his father. On physical examination, there was moderate spasticity bilaterally, worse on the left than right. A subsequent June 1999 treatment record indicated that the son's cerebral palsy was of fairly mild character. The examiner noted that the son was starting 9th grade in the fall and was in special education due to a learning difficulty. He was in an adaptive physical education class for 45 minutes twice a week. The father reported that he was getting his son active in swimming, hiking, scouting, etc. The assessment showed that the son had fairly mild cerebral palsy secondary to prematurity. He did not have any problems with gait, and the problems appeared to be more related to dystonia rather than true spasticity. His father was engaging him in good appropriate physical activity. A March 2001 neurological evaluation showed that the veteran's son had recurrent syncopal or near syncopal episodes over the past year. It was noted that the son was a 10th grader and his grades were As and Bs and he hoped to get a basketball scholarship. The neurologic examination was notable for subtle signs such as dysarthric speech and mild left hemiparesis with left finger tap slower than right. In his December 2003 notice of disagreement, the veteran indicated that the prior medical report which indicated that his son received As and Bs and participated in sports failed to document that his son attended special education classes and adaptive physical education/sports. According to the veteran, his son was never capable to mainstream into regular classes. He also indicated that Individual Education Programming Planning was held each year and that documentation from his son's school had not been requested. He further stated that his son was receiving treatment in the mental health system. In February 2004, the RO requested authorizations from the veteran so that school and mental health records could be obtained; however, as previously noted, the veteran failed to respond. In July 2004, the veteran submitted another Request for Approval of School Attendance indicating his son was expected to enroll as a student at Merced College in August 2004 and the expected date of graduation was May 2005. A statement attached to the form from the veteran indicated that his son was 19 years old and a full time college student. However, in his substantive appeal, the veteran indicated that his son was only taking basic reading and writing classes at the college and was at a 4th grade level. He provided that his son was unable to take care of himself and would always need someone to manage his daily living activities. A May 2005 private treatment record showed that the veteran's son was now 20 years old with diplegic cerebral palsy. He was physically very good and got around well, although he walked slowly. He had a lot of problems with memory issues and fine motor coordination. The examiner noted that his father was concerned about finding services. The examiner stated that the son would be "graduated" from the Shriners clinic, but would have the social worker see him for transition instructions. Again, in July 2005, the veteran submitted a Request for Approval of School Attendance showing that his son was accepted at UC Merced and would be starting in August 2005 and the expected date of graduation was June 2007. In August 2005, the RO again sent another letter to the veteran requesting information concerning the classes his son was taking at UC Merced and any medical evidence or IQ tests the school used to determine he should be in specialized training. The letter also requested medical records showing testing on his son's mental abilities and/or motor coordination, and any assessments done on regarding vocational aptitude. Again, an authorization form was sent to the veteran so that the RO could obtain these records. Nevertheless, it does not appear that the veteran submitted an authorization form or any of this information. However, the veteran did submit an authorization form to obtain records from Dr. D.S. The authorization form requested that Dr. D.S. state whether the veteran's son was permanently disabled, what was the diagnosis and prognosis, and whether he was capable of self support. However, the authorization indicated that the doctor did not need to send copies of medical records. In June 2006, the RO sent the authorization form to Dr. D.S with a cover letter. That same month, a handwritten note by the doctor was submitted stating that the veteran's son had cerebral palsy since birth and was on long term disability for many years. His condition was stable, permanent. Initially, the Board must stress that while it is clear that VA has an obligation to assist the veteran with obtaining pertinent evidence, the duty to assist is not always a one- way street. See Wood. As discussed in the prior section, the RO has repeatedly requested authorizations for purposes of obtaining information concerning the veteran's son's education as well as mental health and any pertinent testing done. However, the veteran has never submitted any such evidence, or an authorization so that the RO could obtain such evidence. Under the circumstances, the Board must look to the current record to make its determination. The Board finds that the evidence of record does not show that the son was permanently incapable of self-support by reason of physical or mental defect upon attaining the age of 18 years. The evidence of record does reflect that the son was born with cerebral palsy. The Board recognizes that a May 2005 private treatment record showed that the son had memory and find motor coordination issues. However, this treatment record reflects the son's disability picture at the age of 20 rather than whether he was incapable of self support at the age of 18. Even considering this as evidence of the disability picture at age 18, although these problems were noted, the examiner does not find that the veteran was incapable of self-support. Further, the private doctors prior to this record appeared to indicate that the son's cerebral palsy was fairly mild in nature. Importantly, even when specifically asked, the most recent private opinion by Dr. D.S. failed to find that the veteran's son was incapable of self-support. Moreover, although the son's disability is permanent, the medical evidence shows that the son attended school as well as participated in physical activities prior to turning 18. Importantly, the veteran has submitted evidence showing that his son was currently enrolled in college, but has not provided any evidence with respect to the classes he is taking. In sum, the evidence of record does not show the son to have been permanently incapable of self-support prior to the date of attaining the age of 18 years. The Board must stress that the question of "permanent incapacity" is a determination predicated on medical and/or mental health findings. In this regard, the Board is fully aware of the contentions of the veteran as to the claimed incapacity of his son, as articulated in his notice of disagreement and substantive appeal. Nevertheless, while the veteran is competent to describe his son's symptoms and activities, as a lay person, the veteran is not competent to render a medical opinion in terms of either the degree of disability or the date at which such disability became so severe as to result in permanent incapacity. See Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). In the instant case, the veteran's contentions are outweighed by the lack of medical evidence with respect to his son's mental health and documentation concerning his schooling, any testing, etc. showing the son's permanent incapacity. Overall, there has been no evidence submitted showing that the veteran's son became permanently incapable of self- support prior to the age of 18. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claims of entitlement to recognition of the veteran's son as a "child" on the basis of permanent incapacity for self-support. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to recognition of the veteran's son as a "child" based on a finding of permanent incapacity for self-support before attaining the age of 18 years is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs