Citation Nr: 1307975 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-42 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether the Veteran's son (R.A.H.) is entitled to recognition as a "helpless child" of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran had active duty service from February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in September 2009, a statement of the case was issued in September 2010, and a substantive appeal was received in September 2010. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks recognition of his son, R.A.H., as a "child" as defined under 38 U.S.C.A. § 101(4)(A)(ii), on the basis that R.A.H. became permanently incapable of self-support before attaining the age of 18 years. See 38 C.F.R. § 3.356. For purposes of determining eligibility as a claimant under Title 38, a "child" is a person who must be unmarried and who must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.356. The "focus of analysis must be on the claimant's condition at the time of his [or her] eighteenth birthday." Dobson v. Brown, 4 Vet. App. 443, 445 (1993). For purposes of initially establishing "helpless child" status, R.A.H.'s condition subsequent to his eighteenth birthday is not for consideration. However, if a finding is made that R.A.H. was permanently incapable of self-support as of his eighteenth birthday, then evidence of R.A.H.'s subsequent condition becomes relevant for the second step of the analysis, that is, whether there is improvement sufficient to render R.A.H. capable of self-support. Id. If R.A.H. is shown to have been capable of self-support at age 18, VA is required to proceed no further. Id. In this case, R.A.H. was born in February 1975 and attained the age of 18 in February 1993. A May 2000 private treatment record notes that, prior to his eighteenth birthday, R.A.H. was diagnosed with Crohn's disease in the 1980s and first underwent surgery for such condition in 1986 at St. Louis Children's Hospital in St. Louis, Missouri. (Subsequent private treatment records note that he had additional surgeries for Crohn's disease in 1994, 2000, and 2008, all after attaining the age of 18.) In a June 2009 statement, the Veteran asserted that R.A.H. was born with Crohn's disease, was hospitalized multiple times throughout his childhood (beginning when he was two months old), and had his first surgery at the age of ten at St. Louis Children's Hospital. After securing the necessary release, all treatment records pertaining to R.A.H. should be obtained from St. Louis Children's Hospital. In a November 2010 statement, the Veteran's wife (R.A.H.'s mother) stated that R.A.H. was first diagnosed with Crohn's disease when he was two months old, had his first surgery when he was ten years old, and had to drop out of school by the time he got to the 9th grade (at approximately age 16), after missing more and more days of school and having had to repeat several grades because his Crohn's disease was so bad and he was incapable of self-support. The Veteran's wife explained that R.A.H. has always had to live with her and the Veteran because R.A.H. has always been unable to work due to his health condition (with the exception of working approximately three months in 2004 before he was forced to stop working). The Veteran's wife stated that, to date, R.A.H. is dependent on her and the Veteran for financial support because of his inability to maintain any kind of employment due to his Crohn's disease. The Veteran and R.A.H. should be contacted and asked to identify the school(s) that R.A.H. attended. The RO/AMC should then undertake efforts to obtain any educational records or transcripts related to R.A.H.'s attendance and/or degree attainment (GED or otherwise) from such school(s). The Veteran and R.A.H. should also be asked to identify whether R.A.H. held any jobs prior to his eighteenth birthday in February 1993, and if so, then to provide the details for all such jobs. The record reflects that R.A.H. receives Social Security Administration (SSA) benefits due to Crohn's disease (as evidenced by an undated explanation of the SSA determination by a Hearing Officer). While SSA records have been associated with the claims file, the decision awarding such benefits is not of record. A request must be made to the SSA for a complete set of records pertaining to R.A.H., including any decisions and any medical evidence relied upon in making those decisions. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). After the above-requested development has been completed, R.A.H. should be scheduled for an appropriate VA examination to determine the nature and severity of his Crohn's disease. The examiner is to offer an opinion regarding whether R.A.H. was permanently incapable of self-support due to Crohn's disease by the time of his eighteenth birthday in February 1993. Accordingly, the case is REMANDED for the following actions: 1. After securing the necessary release, the RO/AMC should obtain all treatment records pertaining to R.A.H. from St. Louis Children's Hospital in St. Louis, Missouri. If any records are unavailable, then a negative reply is requested. The Veteran should be informed that in the alternative he may obtain and submit the records for R.A.H. himself. 2. The RO/AMC should contact the Veteran and R.A.H. and ask them to identify the school(s) that R.A.H. attended. The RO/AMC should then undertake efforts to obtain any educational records or transcripts related to R.A.H.'s attendance and/or degree attainment (GED or otherwise) from such school(s). The Veteran and R.A.H. should also be asked to identify whether R.A.H. held any jobs prior to his eighteenth birthday in February 1993, and if so, then to provide the details for all such jobs. 3. The RO/AMC should contact the SSA and request copies of all records pertaining to R.A.H., including any decisions and any medical evidence relied upon in making those decisions. If provided by disc, the RO/AMC should print out the records and associate the copies with the claims file. Any negative search result is to be noted in the record and communicated to the Veteran. 4. After completion of the above to the extent possible, R.A.H. should be scheduled for an appropriate VA examination to determine the nature and severity of his Crohn's disease. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Based on examination of R.A.H. and review of the record, the examiner should then respond to the following: (a) Is it at least as likely as not (a 50% or higher degree of probability) that R.A.H. was permanently incapable of self-support due to Crohn's disease by the time of his eighteenth birthday in February 1993? (b) If R.A.H. was permanently incapable of self-support as of his eighteenth birthday, then has there been subsequent improvement sufficient to render R.A.H. now capable of self-support? The examiner should offer a rationale for all opinions given with reference to pertinent evidence. 5. After completion of all of the above, the RO/AMC should review the expanded record and readjudicate the issue remaining on appeal. If such issue remains denied, the RO/AMC should furnish the Veteran with an appropriate supplemental statement of the case, and the case should be returned to the Board after the Veteran is afforded an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. 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 of Veterans' Appeals 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. 2012). _________________________________________________ ALAN S. PEEVY 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) (2012).