Citation Nr: 1001007 Decision Date: 01/07/10 Archive Date: 01/15/10 DOCKET NO. 08-09 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether the Veteran's son may be recognized as a 'helpless child' on the basis of permanent incapacity for self-support prior to attaining the age of 18 for the purpose of entitlement to VA benefits. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The Veteran served on active military duty from December 1950 to January 1954. He died in November 2005. The appellant is his wife. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating action of the Department of Veterans Affairs Regional Office (RO) in Montgomery, Alabama. In that decision, the RO denied "permanent incapacity for self-support" for G.B., the Veteran's son. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's son was born on May [redacted], 1967 and attained the age of 18 on May [redacted], 1985. 2. A preponderance of the evidence is against a finding that the Veteran's son was permanently incapable of self-support by reason of physical or mental defects at or before he attained the age of 18. CONCLUSION OF LAW The criteria for entitlement to VA benefits on the basis of permanent incapacity for self-support of the Veteran's son prior to attaining the age of 18 are not met. 38 U.S.C.A. § 101(4), 103(e), 1310, 1542, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.57, 3.209, 3.210, 3.315(a), 3.356 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) is codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2009) and the pertinent implementing regulation is codified at 38 C.F.R. § 3.159 (2009). The Act and implementing regulations provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In this case, a December 2005 letter requested information about G.B., informed the appellant about dependants, and asked the appellant to send more information about G.B.'s disability. This letter stated the information that the claimant is to provide and the information that VA would provide. In a follow up letter from April 2008, further information was requested, including: a statement from a physician who knows of the child's condition showing the extent of disability, diagnosis, prognosis, and date of onset; institutional care records; school records; employment records; and/or statements of at least two persons who knew of the child's condition at age 18 and after. The record also reflects that the originating agency re- adjudicated the claim following the provision of the required notice and the completion of all indicated development of the record. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. As a result, the Board finds that the appellant was given proper notice. All available evidence pertaining to the claim has been obtained, including private medical records and records from the Social Security Administration (SSA). In addition, neither the appellant nor her representative has identified any additional pertinent evidence that could be obtained to substantiate the claim; in a March 2008 statement the appellant explained that private hospital records were not available. The Board is also unaware additional available evidence that has not been obtained. The Board is satisfied that VA has complied with its duty to assist in the development of the facts pertinent to the claim. II. Legal Criteria Dependency and indemnity compensation (DIC) benefits based on a veteran's death are available only to certain survivors of deceased veterans, including a 'child' of a veteran. 38 U.S.C.A. § 1310 (West 2002). With certain exceptions, children of a veteran do not qualify as legally valid claimants for dependency and indemnity compensation benefits after they have attained the age of 18. 38 U.S.C.A. § 101(4)(A) (West 2002 & Supp. 2009). However, under VA regulations, a legitimate child of a veteran may be considered a 'child' after age 18 for purposes of determining entitlement to death benefits or DIC benefits if he or she is unmarried, and before reaching the age of 18 years, the 'child' becomes permanently incapable of self- support. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.315(a) (2009). Pursuant to 38 C.F.R. § 3.356(a) (2009), a 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. The focus of analysis must be on the individual's condition at the time of his or her 18th birthday. Dobson v. Brown, 4 Vet. App. 443, 445 (1993). It is the condition at that specific point in time which determines whether entitlement to the status of 'child' should be granted. In other words, for purposes of initially establishing helpless child status, the claimant's condition subsequent to his or her 18th birthday is not for consideration. Id. According to the Court, if a finding is made that a claimant was permanently incapable of self support as of the claimant's 18th birthday, then evidence of the claimant's subsequent condition becomes relevant for the second step of the analysis which is that VA has a burden of showing improvement sufficient to render the claimant capable of self-support. If the claimant is shown to be capable of self-support at 18, VA is required to proceed no further. Id. Rating determinations 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. 38 C.F.R. § 3.356(b). 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. Id. Rating criteria applicable to disabled veterans are not considered controlling. There are four principal factors for consideration on determining permanent incapacity for self-support. The first is the fact that a claimant is earning his (her) own support is prima facie evidence that he (she) is not incapable of self-support. 38 C.F.R. § 3.356(b)(1). Incapacity for self- support will not be considered to exist when the child by his (her) own efforts is provided with sufficient income for his (her) reasonable support. Id. Second, when a child shown is by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of 18 years, it may be so held at a later date even though there may have been a short intervening period or periods when his (her) condition was such that he (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. 38 C.F.R. § 3.356(b)(2). 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. Id. Third, 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. 38 C.F.R. § 3.356(b)(3). 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. Id. 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. Id. 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. Id. Fourth, 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(b)(4). Other evidence besides a birth certificate may be considered adequate to establish the facts in issue, including hospital and school records. 38 C.F.R. § 3.209 (2009). III. Analysis The claims file contains an October 1954 marriage certificate for the appellant and the Veteran. School records from 1981 to 1982 show their son, G.B., failed several subjects during the 1981 to 1982 school year. The Veteran filed several claims during his lifetime, including a January 1986 claim which lists G.B. as an unmarried child over 18 attending school and states his birth date as May [redacted], 1967. He was not listed as "seriously disabled" on the claim form. The earliest private records for G.B. in the file are from Dr. Johnson and date from December 1989 to January 1990. These records indicate that G.B. was started on medication for diabetes during this time period. The Veteran filled out claims forms in January and July 1997. No children were listed as dependants on these forms. An April 1998 SSA vocational report showed G.B. stated that he worked as a laborer from June 1991 to 1994. He worked for city maintenance for a total of one week. He worked as a "temp" for an unknown amount of time. On a disability report dated the same month, G.B. stated that his condition (presumably, diabetes mellitus) first bothered him in 1989. He stopped working in April 1994. In July 1998, Dr. Rao completed a disability evaluation. This doctor had reviewed G.B.'s medical records and noted the contents. The doctor stated: "He is a known patient of diabetes mellitus and hypertension since 1989." Dr. Rao's impression was diabetes mellitus, type II; uncontrolled hypertension and blurred vision. In July 1998, a SSA report of contact showed a SSA disability specialist spoke with G.B.'s treating physician, Dr. Johnson, about his current medical status. Dr. Johnson stated that G.B. currently had poorly controlled diabetes mellitus and he often acted irresponsibly about his medical care. It was necessary to involve G.B.'s mother to make sure he followed instructions. An April 1999 SSA form showed G.B. reported living with his family. In December 1999, Dr. Alexander performed a medical examination of G.B. Dr. Alexander stated in his report that G.B. was 33 years old and developed diabetes mellitus 14 years ago (at age 19). He had been on insulin for the past 8 years. The impression was uncontrolled hypertension, uncontrolled diabetes mellitus and generalized pain, probably due to peripheral neuropathy. In July 2000, a SSA determination found G.B. disabled for SSA purposes, effective from April 15, 1994. An SSA continuing disability interview from this time showed that G.B. first reported seeing Dr. Johnson in 1985. A February 2005 Jackson Hospital record shows G.B. was discharged with a diagnosis of diabetes mellitus type I, poorly controlled. A long-term history of diabetes mellitus was noted. G.B. had been in and out of hospital due to complications like diabetic retinopathy. A history and physical record showed that prior to his admission, G.B. had not been taking his medications regularly because "he spends his days in two different houses and because of his inability to drive one set of medications is at one house and another set of medications at another house." This record reports that G.B. had a history of diabetes since he was 18 years old. It also stated that G.B. was a very poor historian and as a result, the clinician was unclear on much of his medical problems. In December 2005, the appellant filed a DIC claim and listed G.B. as a seriously disabled child. G.B. was shown to be on SSA disability starting in December 2004. In a statement from the same month, the appellant said G.B. was a member of her household prior to age 18 and has been receiving disability since August 2000 for diabetes and related illnesses. The same month, Dr. Davis wrote a letter stating that G.B. had been his patient since October 2002. "He is totally disabled and suffers multiple medical problems that contribute to his disability." In August 2006, the appellant submitted a statement asserting that G.B. was sick before his 18th birthday. She said he was suspected of having sickle cell anemia. He had "a low blood count," low blood pressure, frequent dizziness and muscle spasms. He had hemoglobin tests. The doctors who treated G.B. in his childhood did not have records. A local hospital where G.B. was treated was closed and only records from the past 10 years were available. Several lay statements were submitted; all were dated September 2007 and received in March 2008. A statement from C.M.B. related that she had known the appellant's family all her life. The appellant would tell C.M.B. that doctors did not know what was wrong with her son; he was in pain and sick all of the time. C.M.B. stated that G.B. was now disabled and did not appear to be getting better. T.B. stated he has known G.B. all his life. G.B. was sickly as a child. T.B. used to play with GB as a child and remembered him being in and out of doctors' offices and not being able to play that long due to headaches and fatigue. S.H. remembered G.B. having physical complications early in life. When he was 12, he used to have to stay home sick. On occasion he was bedridden. S.H. remembered him complaining of headaches and dizziness as well as being taken to "the emergency facility" once a month for his condition. G.B.'s older brother also wrote to report that G.B. has been sickly his whole life. As a child he was always weak and sick. The doctors never seemed to get his diagnosis right. He was misdiagnosed several times. He remained a sickly person. G.B.'s brother was 13 years older than G.B. and vividly remembered G.B.'s condition growing up. In February 2007, Dr. Parma stated that G.B. has a history of proliferative diabetic retinopathy in both eyes, along with ischemia and clinically significant macular edema in both eyes. His diabetes was stable, but there was little chance of vision improvement in either eye. In February 2007, Dr. Johnson provided another statement. He stated: "[G.B.] was diagnosed in his teens and has been under my care for hypertension and type I diabetes since 1989. He is also under care for dyslipidemia. Currently he is being actively treated for the complications of these ailments." In a March 2008 statement, the appellant asserted G.B. should receive benefits for permanent incapacity which occurred before age 18. She pointed to Dr. Johnson's February 2007 statement, which noted G.B. was diagnosed with diabetes mellitus in his teens, for support. She said G.B. had been sick since he was born. Dr. Capel (now deceased) diagnosed G.B. as having a blood disorder that was causing him to be in pain and dizzy all of the time. As a young child, G.B. couldn't play with other kids because he was always dizzy, had to urinate frequently, and suffered muscle spasms. He dropped out of school at 15 due to his health. No hospital records are available. She noted that currently G.B. had diabetes, eye problems, heart problems and severe diabetic neuropathy. "I'm sure that his present condition is just a continuation of the disease he was born with." After a full review of the record, the Board finds that the Veteran's son, G.B., was not permanently incapable of self- support as of the age of 18 years. Although G.B. currently has diabetes mellitus (along with complications), the evidence fails to establish that that he was incapable of self-support by reason of his diabetes mellitus or any other medical or physical defect at the date of attaining the age of 18 years (May 1985). No birth certificate was in file, certifying the date of birth for G.B. However, under 38 C.F.R. § 3.209, the school and hospital records may be considered. The records in the file convincingly show that G.B. was born on May [redacted], 1967. Additionally, an April 1999 SSA record indicates that the Veteran is not married. The Board has considered the evidence of G.B.'s condition in May 1985 at the time of his 18th birthday, as required by Dobson, 4 Vet. App. 445. Several years prior, G.B.'s school records show he failed 7th grade and missed some days of school, but no reason was given as to the absences. The Veteran did not list G.B. as seriously disabled when filing a claim in January 1986. All the evidence tends to show that G.B. was first diagnosed with diabetes in 1989, years after he turned 18, and that his diabetes mellitus did not become disabling until years later. Evidence supports that G.B. was diagnosed with diabetes mellitus in 1989 and then he worked for a period of time. The earliest record mentioning diabetes is Dr. Johnson's record from December 1989. In an April 1998 disability report, G.B. stated that his condition (presumably, diabetes mellitus) first bothered him in 1989. In July 1998, Dr. Rao stated that G.B. had been treated for diabetes mellitus and hypertension since 1989. The April 1998 SSA vocational report shows G.B. stated that he worked as a laborer from June 1991 to 1994. The Board does not find that G.B. was capable of self-support at 18 in 1985 simply because he later worked from June 1991 to 1994; such a finding is impermissible under 38 C.F.R. § 3.356(b)(2). Instead, the Board finds G.B. to have been capable of self support in 1985 because the evidence shows that he was diagnosed with diabetes mellitus after he turned 18 and his diabetes mellitus appears to have worsened later in his life. There is no showing that any other physical or mental malady rendered him incapable of self-support prior to age 18. Some inconsistencies are found in the record. The July 2000 SSA continuing disability interview showed G.B. first reported seeing Dr. Johnson in 1985 for treatment, including diabetes. However, in his February 2007 statement, Dr. Johnson stated he first saw G.B. in 1989; also Dr. Johnson's records date the earliest treatment for diabetes mellitus to 1989. A February 2005 Jackson Hospital history and physical record reported that G.B. had a history of diabetes since he was 18 years old. However, it also stated that G.B. was a very poor historian and as a result, the clinician was unclear on much of his medical problems. Several lay statements, received in March 2008, showed that G.B. has always been sickly. Most of the statements tend to be brief, general and some do not address how they knew the appellant or G.B. Although the statements show G.B. was sickly, they do not tend to show that he was incapable of self-support; they show that he couldn't play and did have to go to the doctor on occasion. They are afforded little weight. G.B.'s older brother and the appellant were in the best position to describe G.B. at 18. G.B.'s brother explained he observed G.B.'s condition growing up and was 13 years older than G.B. G.B.'s older brother, the appellant and the other writers of the lay statements have not shown to be competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay persons can observe and report symptoms, but they are not competent to establish that G.B. was 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. § 3.159(a)(2). The appellant specifically stated that G.B. had to drop out of school because of his health in a March 2008 statement. School records from 1981 and 1982 do not support this assertion; they show absences but do not state what the absences were from. As discussed, a preponderance of the evidence reflects that diabetes mellitus and hypertension did not render him incapable of self-support until after his 18th birthday, and there is no support in the record that any other condition would have had this effect at an earlier date. As a result, this assertion is afforded little probative weight. The appellant asserts that the February 2007 Dr. Johnson statement supports that G.B. was diagnosed with diabetes mellitus at 18 because he states G.B. was diagnosed "in his teens." Dr. Johnson did not say he was diagnosed at time he was 18 years old. As mentioned, other records (for example, the July 1998 Dr. Rao evaluation) date the time of diagnosis of diabetes mellitus to 1989, when G.B. was 22 years old. What's more, Dr. J. specifically referred to beginning G.B.'s care for diabetes mellitus in 1989. The record does not support that G.B. was diagnosed with diabetes mellitus at age 18. However, even if G.B. was diagnosed with diabetes mellitus at age 18, the evidence does not show he was incapable of self-support at that time. The evidence shows he was incapable later in his life when his diabetes was uncontrolled; for example, in February 2005 when he was admitted to Jackson Hospital. The Board concludes that the preponderance of the evidence is against the claim, and it must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (West 2002). ORDER Entitlement to VA benefits on the basis of permanent incapacity for self-support of the Veteran's son prior to attaining the age of 18 is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs