Citation Nr: 1310153 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 06-08 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to recognition of LDC, the Veteran's child, as a helpless child for the purposes of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years. 2. Entitlement to recognition of JDC, the Veteran's child, as a helpless child for the purposes of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years. 3. Entitlement to recognition of ADC, the Veteran's child, as a helpless child for the purposes of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years. 4. Entitlement to recognition of IDC, the Veteran's child, as a helpless child for the purposes of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 1945 to October 1947. The appellant, filing on behalf of her dependent siblings, seeks recognition of them helpless children based upon permanent and total incapacitation from self-support prior to attaining the age of 18. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in April 2005 and January 2007 by the Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. In August 2005, the appellant testified at a hearing before a Decision Review Officer (DRO) at the RO. In July 2007, the appellant testified at a hearing before the Board held at the RO. In November 2008, the Board denied the appellant's claims. Thereafter, the appellant filed an appeal to the United States Court of Appeals for Veterans Claims. In a May 2010 Joint Motion for Remand, the appellant and VA agreed that the Board did not provide an adequate statement of reasons and bases for the denial of the appellant's claims. The issue of entitlement to recognition of JDC, ADC, and IDC, as helpless children for the purposes of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years, REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. LDC is the Veteran's natural child. He attained the age of 18 in September 1974. 2. LDC was initially diagnosed with schizophrenia in November 1973, prior to attaining the age of 18. 3. LDC was permanently incapable of self-support by reason of a mental condition prior to attaining the age of 18. CONCLUSION OF LAW The criteria for recognition of LDC as a helpless child of the Veteran have been met. 38 U.S.C.A. § 101(4)(A) (West 2002); 38 C.F.R. § 3.356 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant contends that LDC was permanently and totally incapacitated prior to attaining the age of 18, and is thus entitled to helpless child benefits. In support of her contention she notes generally that the Veteran, her father, was discharged from service as a result of his schizophrenia, and that he was in receipt of a 100 percent disability rating for schizophrenia for more than 10 years prior to his death. The record shows that LDC has a current diagnosis of schizophrenia and that he is currently permanently incapacitated from self-support. The question before the Board is whether LDC was permanently and totally incapacitated prior to attaining the age of 18. In order to be classified as a child for VA benefits purposes, the child must be unmarried and must either be 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) (West 2002); 38 C.F.R. §§ 3.57(a)(1), 3.356 (2012). Principal factors to be considered in determining whether the child is entitled to recognition as helpless include: (1) Whether a child is earning his or her own support. Holding gainful employment is prima facie evidence that the child 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, will 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 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, 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 will be considered. 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. 38 C.F.R. § 3.356 (2012). The focus of analysis must be on the claimant's condition at the time of his or her eighteenth birthday. 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 was improvement sufficient to render the claimant capable of self-support. If the child is shown to be capable of self-support at 18, VA is not required to proceed further. Dobson v. Brown, 4 Vet. App. 443 (1993). In support of her claim, the appellant submitted numerous written statements and testimony regarding the troubled history of her sibling. She asserts that LDC was diagnosed with schizophrenia prior to attaining the age of 18. Lay statements written by the family housekeeper attest similarly. The appellant asserts that LDC began exhibiting strange behaviors, including incoherence and was non-responsive to other people, when he was approximately 16 years of age. She states that he was seen by local caregivers and was given medication without response. It was advised that he be seen by a psychiatrist. In October 1974, shortly after his eighteenth birthday LDC underwent VA examination. At that time, he was diagnosed with schizophrenia, undifferentiated type, but found to be in remission. LDC was attending school at the time. The examiner determined that LDC was mentally competent at that time. In a July 2007 letter, Carmen S. Urgel, M.D., M. P.H, corroborates those assertions at the request of the appellant, stating that he served as the local Municipal Health Officer from 1968 to 1982. In early 1970, LDC was brought to the Rural Health Center with complaints of sleepless nights, incoherence, and refusal to eat food at the right times. He prescribed LDC tranquilizers but his symptoms persisted for many years. Dr. Urgel advised LDC's parents to seek formal psychiatric treatment. A June 2007 record from the National Center for Mental Health certifies that for two weeks in September 1973, when he was 17 years of age, LDC was hospitalized for treatment of schizophrenia. He was again hospitalized from September 1989 to June 1991, and in 2003. In support of her contention that LDC was incapacitated from self-support prior to attaining the age of 18, the appellant asserts the fact that LDC attended college for approximately 10 years without ever graduating. A transcript from Catanduandes Colleges reflects that LDC was enrolled as a student from 1973 to 1983. He received passing grades in a number of courses but did not earn a degree. Records dated from February 2000 show that LDC has been determined to be incapable of leading a full independent existence and needs constant supervision. In May 2008, VA obtained the opinion of a specialist regarding whether, based upon the above history, it was as likely as not that LDC was permanently incapacitated from self-support prior to attaining the age of 18. In determining that LDC was not incapacitated from self-support prior to attaining the age of 18, the specialist noted that while LDC had been diagnosed with schizophrenia prior to the age of 18, diagnoses of schizophrenia vary in degree of resulting impairment. Some patients with schizophrenia are self-sufficient while others are not. Additionally, schizophrenia can also be characterized by periods of exacerbation and improvement. For those reasons, a diagnosis of schizophrenia, or a period of incapacity related to schizophrenia, does not on its own demonstrate that an individual is permanently incapacitated from self-support. The specialist noted that at the age of 18 and for several years thereafter LDC was able to maintain his personal appearance and hygiene, control his behavior in class, and participate in meaningful academic activity to maintain his academic standing. In October 2011, VA requested the opinion of a specialist regarding whether, based upon the above history, it was as likely as not that LDC was permanently incapacitated from self-support prior to attaining the age of 18. An unsigned opinion was submitted in January 2012. The opinion indicates that before the age of 18, LDC met the criteria for schizophrenia or other chronic psychiatric disorder. The author wrote that delayed graduation is consistent with that diagnosis which is often associated with incapacity if the individual is not given or not responsive to treatment. The author noted that in the past prognosis was poor but recent advances and a changed attitude about psychiatric disorders indicated that a recovery can and does occur more often than not. Moreover, because recovery can occur, simply having a diagnosis of schizophrenia does not imply incapacity. However, LDC's case was one of active symptoms, continued dysfunction, and poor response to treatment from an early age. The author indicated that early onset was predictive of poor outcome and LDC showed that. Delayed or intermittent treatment was a factor. The author noted that LDC lived in a rural area, was believed to be possessed by evil spirits, and was treated by "quacks." LDC's mother and neighbor noted that LDC was symptomatic at age 14 and hospitalized at age 15. He was also twice more hospitalized before age 18. The author indicated that medical records repeatedly note poor response to treatment when LDC received it. The author noted that LDC's only competitive work was as a clerk and he was unable to cope. LDC also attended college and had to drop out, but continued with passing grades for ten years. The author noted that the academic environment was low stress and a protected environment. Individuals with mental illness have been known to function and navigate and remain disabled regarding competitive work. The author concluded that the evidence was consistent with LDC being disabled before age 18. The author indicated that the fact that LDC never recovered enough to be able to manage his life independently is consistent with his being permanently disabled. VA obtained the opinion of another specialist in July 2012. In that opinion, the specialist indicated that it was very clear that LDC's illness predated his eighteenth birthday. The specialist reviewed the relevant evidence and noted that the LDC's mother indicated that LDC's symptoms began when he was fourteen years old. When he was seventeen years old his symptoms included an inability to sleep, running around the neighborhood, and talking to himself. The specialist indicated that the Veteran was hospitalized for two months in 1973 when he was seventeen and given a diagnosis of schizophrenia. LDC eventually finished high school and went on to college but was reported to avoid all social activities and talk to himself. The appellant indicated that the Veteran was able to stay in college for ten years because of the "help, care, guidance, and support" of people paid by his mother, and that he was incapable of providing for his own needs at the time he was in school. He was able to pass a number of courses but left without obtaining a degree. He tried to work as a bank clerk and was not able to sustain employment. He was admitted for psychiatric treatment in September 1989 and was unable to maintain employment since that time and continued to have evidence of schizophrenia. The specialist indicated that it was likely that LDC was only able to function at some minimally acceptable level because of the structure and support provided by the college and the hired caretakers and he was then and has been unable to function well enough to be employed since that time. The specialist concluded that LDC's need for help both while in high school and college, his continued symptoms, and his inability to complete college or to work subsequently all support that his disability had been ongoing and continuous. The specialist indicated that LDC's period of disability began around the time of his first hospitalization in 1973 when he was seventeen years old, if not before, and that only the presence of outside supports made it possible for him to appear to be functional to any significant extent. In considering the evidence of record under the applicable laws and regulations, the Board also concludes that recognition of LDC, the Veteran's child, as a helpless child for the purposes of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years is warranted. The Board acknowledges that there are varying opinions regarding whether LDC was a helpless child for the purposes of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years. In general, the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his or her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22 (1998); Owens v. Brown, 7 Vet. App. 429 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444 (2000). The Board acknowledges the January 2012 opinion of record. However, the Board finds that opinion is of limited probative value because it is not clear who authored that opinion, or the medical training credentials or the author. The Board finds the July 2012 expert medical opinion to be the most probative opinion of record. The specialist considered the appellant's representations, the claims file, and the May 2008 negative medical opinion. Thereafter, he concluded that LDC was permanently incapacitated for self-support prior to attaining the age of 18. A complete and thorough rationale is provided for the opinion expressed. The Board also finds the May 2008 opinion to be of little probative value. The specialist failed to consider the evidence of record which reveals that LDC required help both while in high school and college, had continued psychiatric symptoms since high school, and was unable to complete college or to work subsequently. The July 2012 specialist considered that evidence, included a thorough review of the claims file, and included a complete rationale for the opinion. In sum, resolving any reasonable doubt in favor of the claimant, the Board finds that LDC meets the criteria for recognition as a helpless child and was incapable of self support before the age of 18. Therefore, the claim is granted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.57(a)(1) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Recognition of LDC, the Veteran's child, as a helpless child for the purposes of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18, is granted. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the remaining clams can be reached. The appellant, filing on behalf of her dependent siblings, contends that JDC, ADC, and IDC were each permanently and totally incapacitated from self-support prior to attaining the age of 18, and are thus entitled to helpless child benefits. The record shows that JDC, ADC, and IDC all have current diagnoses of schizophrenia and that they are currently permanently incapacitated from self-support. The record also shows that each has a lengthy history of treatment for schizophrenia, which in each case appears to have manifested prior to the age of 18. Associated with the claims file is a May 2008 opinion from a VA psychologist who determined that none of the children at issue were permanently incapacitated for self-support prior to attaining the age of 18. Specifically, the physician found that while JDC did not complete high school, several factors could have been the reason, including choice. The physician noted that JDC was a marginal student and failure to complete high school was consistent with that fact. With regard to ADC, the examiner stated that she was married at age 25 and had six children, which required significant social strengths. Finally, with regard to IDC, the physician reported that the record did not support a diagnosis of schizophrenia prior to the age of 18 and IDC was able to complete high school, although she did not enter college. The Board requested an outside expert medical opinion in October 2011. However, the opinion obtained in January 2012 did not include any reference to the name of the individual who authored the opinion and that opinion is of very little probative value. Thereafter, the Board requested an expert medical opinion in June 2012. Three expert medical opinions, one each for JDC, IDC, and ADC, were obtained in July 2012. However, the specialist who proffered the opinion used a preponderance of the evidence standard when he found that there was not enough evidence to support a determination of incapacity for JDC, ADC, and IDC prior to each attaining the age of 18. The Board's June 2012 expert medical opinion request specified that the standard for the specialist to use is whether it is at least as likely as not (50 percent probability or greater) that JDC, ADC, and IDC were permanently incapacitated for self-support prior to attaining the age of 18. Consequently, the Board must remand to obtain opinions based on the correct legal standard. In determining whether a person qualifies as a helpless child, the focus of the analysis must be on the claimant's condition at the time of his or her eighteenth birthday. Dobson v. Brown, 4 Vet. App. 443 (1993). If the individual in question is shown to be capable of self-support at age 18, VA is required to proceed no further. However, if a finding is made that an individual was permanently incapable of self-support as of his or her eighteenth birthday, then evidence of that person'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 after the age of 18. Accordingly, the case is REMANDED for the following action: 1. Request a psychiatrist to review the claims file and render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that JDC was permanently incapacitated for self-support prior to attaining the age of 18 (on or before December 5, 1978). The examiner should not base the opinion solely on the fact that JDC did not have a diagnosis of schizophrenia prior to his eighteenth birthday, but instead focus on his physical and mental condition prior to his eighteenth birthday. If a determination is made that JDC was permanently incapable of self-support as of his eighteenth birthday, then evidence of his subsequent condition should be discussed. The psychiatrist is also requested to reconcile the opinion with the other opinions of record. 2. Request a psychiatrist to review the claims file and render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that ADC was permanently incapacitated for self-support prior to attaining the age of 18 (on or before December 14, 1980). The examiner should consider the evidence showing that ADC developed a serious psychiatric illness by the age of 14 and the examiner should not solely base the opinion on the fact that ADC married at age 25 and had six children, as there is no evidence reflecting ADC's role and actions as a mother and it is unclear whether ADC displayed "social strengths" as was determined by the May 2008 VA psychiatrist. The examiner should focus on ADC's physical and mental condition prior to her eighteenth birthday. If a determination is made that ADC was permanently incapable of self-support as of her eighteenth birthday, then evidence of her subsequent condition should be discussed. The psychiatrist is also requested to reconcile the opinion with the other opinions of record. 3. Request a psychiatrist to review the claims file and render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that IDC was permanently incapacitated for self-support prior to attaining the age of 18 (on or before November 29, 1984). The examiner should specifically discuss a July 2007 private medical opinion which held that IDC was entirely unserviceable and completely dependent on her parents for her existence. Additionally, the examiner should not base the opinion solely on the fact that IDC did not have a diagnosis of schizophrenia prior to her eighteenth birthday but instead should focus on IDC's physical and mental condition prior to her eighteenth birthday. If a determination is made that IDC was permanently incapable of self-support as of her eighteenth birthday, then evidence of her subsequent condition should be discussed. The psychiatrist is also requested to reconcile the opinion with the other opinions of record. 4. Then, readjudicate the claim. If action remains adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs