Citation Nr: 1208751 Decision Date: 03/07/12 Archive Date: 03/19/12 DOCKET NO. 08-13 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim for recognition of the Veteran's daughter as a "child" based on permanent incapacity for self-support prior to attaining the age of 18. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The appellant is the daughter of the Veteran who served on active duty from January 1951 to August 1954 and who died in March 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2009, the Board REMANDED this case to the RO for further development. It is now before the Board for further appellate consideration. FINDINGS OF FACT 1. In January 2006, the Board denied the claim of entitlement to recognition of the Veteran's daughter as a "child" based on permanent incapacity for self-support prior to attaining the age of 18. 2. An appeal to the United States Court Of Appeals For Veterans Claims (Court) was dismissed in November 2006. 3. The evidence received since the Board's January 2006 denial is either cumulative or redundant and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to recognition of the Veteran's daughter as a "child" based on permanent incapacity for self-support prior to attaining the age of 18. CONCLUSION OF LAW New and material evidence sufficient to reopen a claim of entitlement to recognition of the Veteran's daughter as a "child" based on permanent incapacity for self-support prior to attaining the age of 18 has not been submitted. The claim is not reopened and the January 2006 rating decision remains final. 38 U.S.C.A. §§ 5103A (d)(2)(f), 5108, 7105 (West 2002 and Supp. 2011); 38 C.F.R. § 3.156(a), 3.159, 20.1100 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, January 2007 correspondence to the appellant from the RO specifically notified her of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the claimant and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the claimant about the information and evidence not of record that was necessary to substantiate her claim; (2) informing the claimant about the information and evidence VA would seek to provide; and (3) informing the claimant about the information and evidence she was expected to provide. Second, VA has made reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011). All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes s private medical records, a birth certificate for the appellant, and statements from the claimant and others. Numerous attempts were made to obtain alleged Social Security Administration (SSA) benefits records as it was alleged in a June 2007 statement that she received such benefits in the amount of $623.00 per month. It is noted, however, that SSA has responded on more than one occasion (in 2007 and 2009) that they have no records regarding the appellant. It was specifically noted in 2009 that there were no medical records as the appellant had not filed for disability benefits. The claimant has not indicated that she has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The claimant has been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. 38 C.F.R. § 3.103 (2011). Additionally, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a Claimant of the evidence and information that is necessary to reopen the claim and VA must notify the Claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. In the present case, the Veteran has been notified of the evidence and information necessary to reopen the claim and to establish entitlement to the underlying claim for benefit sought in the January 2007 VCAA letter mentioned above. While notification of regulations pertinent to the establishment of an effective date and of the disability rating were not provided, the Veteran has not been prejudiced as a result, as the preponderance of the evidence is against her claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). New and Material Evidence The Board denied the claim for entitlement to recognition of the Veteran's daughter as a "child" based on permanent incapacity for self-support prior to attaining the age of 18 in January 2006 on the basis that is was not shown that she was permanently incapable of self-support by reason of physical or mental defect when, or before, she attained age 18. An appeal to the Court was dismissed in November 2006. Thus, the January 2006 decision is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.160, 20.1100 (2011). The appellant filed an application to reopen her claim for recognition as a "child" based on permanent incapacity for self-support prior to attaining the age of 18 in January 2007. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2011). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). Evidence of record at the time of the January 2006 decision included the Veteran's certificate of death showing that he died in March 1986 and that the cause of death was a myocardial infarction. Also of record were statements from private physicians received in February 1986 which reflect that he was treated during the 1980s for hypertension (HTN), coronary disease, arthritis, and gout. Additional evidence of file at the time of the 2006 Board denial included the appellant's birth certificate showing that she was the Veteran's daughter and that she was born on February [redacted], 1952. Private clinical records and medical statements were of record that reflected treatment of the appellant during the late 1990s for various disorders, to include mental retardation, possible arthritis, possible carpal tunnel syndrome, and low back pain. It was noted that she was unreliable and unemployable. Also of record was a May 2001 statement by the appellant (written with the help of another) attesting to the fact that she lived in the Philippines until the mid 1990s when she came to live in Florida. She attended a daytime program. It was argued that she was a disabled dependant and should receive his benefits. In a statement dated in January 2002, a private physician who identified himself as the appellant's uncle stated that the appellant was permanently incapable of self-support due to physical and mental problems from the date of her birth until she attained the age of 5 years old. In a statement dated in July 2002, two people who had known the appellant since February 2002 attested to the fact that she had difficulty talking, reading, and writing. They talked to her on a daily basis on the phone. They also took her to church. She had told them that it took her 12 years to complete elementary school. She attended a private behavioral school where she was taught basic skills of living. Laws and Regulations Considered at Time of 2006 Denial The term "child" includes an unmarried person, who before reaching the age of 18 years, became permanently incapable of self-support. 38 U.S.C.A. § 101(4) (West 2002 & 2006); 38 C.F.R. § 3.57 (2006). Pursuant to 38 C.F.R. § 3.356(a), 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 is on the individual's condition at the time of his 18th birthday. It is that condition which determines whether entitlement to the status of "child" should be granted. See Dobson v. Brown, 4 Vet. App. 443 (1993). 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. 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. Rating criteria applicable to disabled Veterans are not considered controlling. Principal factors for consideration are: 1) that a claimant is earning his/her own support is prima facie evidence that he is not incapable of self-support. Incapacity for self-support will not be considered to exist when the child by his own efforts is provided with sufficient income for his/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/her condition was such that he 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 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) 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 doubt as to whether they would render the average person incapable of self-support, factors other than employment are for consideration. In such cases it 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; and 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. 38 C.F.R. § 3.356(b) (2006). Analysis As indicated above, the question of whether the appellant might be considered the Veteran's helpless child turned on whether she had a permanent incapacity for self-support at the time of attaining the age of 18. The medical evidence of record was dated from the 1990s forward. There was no report pertaining to a medical condition prior to the age of 18. Relevant to the question at hand was a 2000 statement from a relative who was also a private doctor. This statement reported that the appellant was incapable of self-support until the age of 5. The Board noted that while such a statement was no doubt accurate, it was not sufficient to establish permanent incapacity for self-support at the time the appellant became 18. The additional statement of record attested to current disabilities suffered by the appellant and was not applicable to determine her condition prior to or at the age of 18. Since the record contained no evidence establishing such incapacity at the age of 18, entitlement to recognition of the Veteran's daughter as a "child" based on permanent incapacity for self-support was not established, and the Board denied the claim. Since the January 2006 decision, additional records have been added to the record, to include a December 2006 solicitation letter from a physician to the appellant noting that he could provide medical opinions. Also added to the record was a June 2007 statement by the appellant indicating that she received Social Security Administration (SSA) benefits in the amount of $623.00 per month. In January 2009, the Board remanded the claim in order that the appellant's SSA record could be added to the record. Numerous attempts were made to obtain SSA records. A VA Memorandum of Unavailability dated in April 2011 was added to the record indicating that SSA records were unavailable in that they did not exist. It was added that she had not filed for SSA benefits. The Board finds that the additional evidence does not show that the appellant (the Veteran's daughter) meets the criteria for legal recognition as a "child" based on permanent incapacity for self-support prior to attaining the age of 18 as required under VA regulations. Given the above, the Board finds that the evidence added to the record since the January 2006 decision is either cumulative or redundant or does not relate to an unestablished fact necessary to substantiate the appellant's claim. The evidence does not raise a reasonable possibility of substantiating the claim. Therefore, the Board must find that new and material evidence has not been received to reopen the claim for entitlement to recognition of the Veteran's daughter as a "child" based on permanent incapacity for self-support prior to attaining the age of 18. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2011); Ortiz v. Principi, 274 F.3d 1361, 1384 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55057 (1990). ORDER New and material evidence not having been received to reopen the claim for entitlement to recognition of the Veteran's daughter as a "child" based on permanent incapacity for self-support prior to attaining the age of 18, the appeal is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs