Citation Nr: 1312018 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 10-44 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether T.A.M., an adult son of the Veteran, has permanent incapacity for self-support. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from November 1981 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas. For reasons discussed below, this appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with this appeal. This Virtual VA claims file has been reviewed. REMAND The Veteran is in receipt of service-connected compensation benefits. She is seeking additional dependent benefits for her adult son, T.A.M., on the basis that he is a helpless child permanently incapable of self-support. He was born in July 1991 so he turned 18 years old in July 2009. The Board's review of the record reveals that further development of this issue is required. VA regulations provide that, for the child of a veteran to be shown to have permanent incapacity for self-support, the child must be shown to have been permanently incapable of self-support by reason of mental or physical defect by or at the date of attaining the age of 18 years. 38 C.F.R. § 3.356 (2012). Physical or mental defects must make the child permanently incapable of self-support through his own efforts. Id. Employment that is 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 that is otherwise established. Id. The capacity of a child for self-support is not determinable upon employment that is afforded solely upon sympathetic or charitable considerations and that involves no actual or substantial rendition of services. Id. In this case, the Veteran has reported, and has submitted supporting evidence, that T.A.M. has been receiving disability services since elementary school. A November 2000 report of school psychological evaluation report reflects that neuropsychological evaluation revealed a cognitive disorder (not otherwise specified), an anxiety disorder (not otherwise specified), and a rule out psychotic disorder (not otherwise specified). A June 2002 report of psychological evaluation indicates that T.A.M. was enrolled in special education classes and was being referred for evaluation of possible autism. The examiner's assessment was that T.A.M. demonstrated a profile of behaviors consistent with mild to moderate Asperger's. More recent records, dated 2008 through 2010, reflects that T.A.M. graduated high school within the special education program and enrolled in Central Texas College under Disability Support Services. A July 2009 report by child psychiatrist, Dr. Jampala, notes that T.A.M.'s Asperger's will require "continuous support from doctors and his family," and that T.A.M. cannot support himself without guidance. An October 2010 report of psychiatric evaluation notes an assessment of rule out autistic disorder and dementia due to anoxia (at birth). The examiner noted that T.A.M. demonstrates decreased cognitive ability and comes across as childlike. The foregoing medical evidence tends to support the Veteran's claim that T.A.M. may be permanently incapable of self-support. Moreover, the Board observes that T.A.M. is currently in receipt of Supplemental Security Income benefits through the Social Security Administration (SSA). On the other hand, evidence that T.A.M. is enrolled in a general studies program at Central Texas College and has been able to obtain an A in at least one of his courses suggests that a permanent inability for self-support may not have manifested by the time he was eighteen years old. The Board notes that it is not equipped to determine whether T.A.M.'s obvious disability renders him permanently incapable of self-support. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, a remand is required to obtain a mental health evaluation of T.A.M., with review of the claims file, and an opinion as to whether T.A.M.'s various mental disabilities made him permanently incapable of self- support by the time he was eighteen years old. To ensure that the record before the examiner is complete, the RO/AMC should obtain records associated with T.A.M.'s award of Supplemental Security Income by the SSA as such records are relevant to the current appeal and must be obtained. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); see also 38 C.F.R. § 3.159(c)(2) (2012). Accordingly, the case is REMANDED for the following action: 1. Request from the Social Security Administration all medical records upon which T.A.M.'s claim or award of Supplemental Security Income (SSI) was based. All records obtained or any response received should be associated with the claims folder. If the RO/AMC cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Following receipt of any outstanding treatment records, but whether or not records are received, schedule Mr. T.A.M., the son of the Veteran, for a VA mental health examination to address the question of permanent incapacity for self-support. Access to the claims file and Virtual VA must be made available to the examiner for review, if needed. Any indicated diagnostic tests and studies must be accomplished. After examining Mr. T.A.M. and reviewing the claims file, the examiner should express an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that T.A.M.'s mental disability, to include any cognitive disorder, Asperger's, and/or autism, made him permanently incapable of self-support by the time he was 18 years old (July 2009). A rationale discussing the relevant lay and medical evidence should support any opinion provided. 3. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The RO must ensure that the examiner documented his or her consideration of Virtual VA, as appropriate. If any report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 4. Upon completion of the above requested development and any additional development deemed appropriate, readjudicate the issue on appeal. All applicable laws, regulations, and theories of entitlement should also be considered, as well as any evidence received since the February 2012 supplemental statement of the case. If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ MICHAEL D. LYON 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).