Citation Nr: 1329955 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-13 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for the Veteran's cause of death. 2. Entitlement to recognition of C.B. 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 Christine C. Kung, Counsel INTRODUCTION The Veteran had recognized service with the United States Armed Forces in the Far East from December 1941 to December 1945, to include recognized guerrilla service from October 1943 to May 1945. He died in March 1983. The Appellant is the Veteran's surviving spouse. C.B. is the daughter of the Veteran and Appellant. This matter comes on appeal before the Board of Veterans' Appeals (Board) from September 2008 and March 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Board reopened the claim of service connection for the cause of the Veteran's death and remanded the issue in July 2011 to obtain a VA medical opinion addressing the Veteran's cause of death. This was accomplished, and the Board concludes that it may proceed with a decision on the issue of entitlement to service connection the Veteran's cause of death at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Unfortunately, the Board finds that an additional remand is necessary prior to review of the remaining claim for helpless child benefits. The issue of entitlement to recognition of C.B. as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran died in March 1983. The certificate of death lists the immediate cause of death as gastric carcinoma; no contributory causes of death were identified. 2. At the time of his death, the Veteran was service-connected for disfiguring scars from a gunshot wound to the left cheek, rated 30 percent disabling; residuals of a bullet wound, through and through, right side of the abdomen with injury to Muscle Group XIX, rated 10 percent disabling; residuals of a gunshot wound to the right shoulder with injury to Muscle Group XXII, rated 10 percent disabling; and loss of teeth, numbers 8, 9, 10, and 11, rated as noncompensable. 3. The Veteran's cause of death is not etiologically related to active service. 4. The Veteran's service-connected disabilities did not contribute substantially or materially to the Veteran's cause of death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court or CAVC) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. VA has met its duty to notify and assist the Appellant in this case. In a July 2008 preadjudicatory letter, VA informed the Appellant of the evidence necessary to substantiate claims for DIC benefits, evidence VA would reasonably seek to obtain, and information and evidence for which she was responsible. A February 2013 notice letter provided the Appellant with a statement of the conditions for which the Veteran was service-connected at the time of his death in accordance with Hupp, 21 Vet. App. at 342. While the February 2013 notice letter was not received prior to initial adjudication of the claim, the Board finds that the RO cured any deficiency in notice timing when it readjudicated the case in a May 2013 supplemental statement of the case. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Veteran's service treatment records, certificate of death, letters from the Veteran's treating physicians, private treatment records, a VA medical opinion, and the Appellant's lay statements have been associated with the claims file. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the general duty to assist provision, 38 U.S.C.A. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is necessary to substantiate the claim, and VA is excused from providing such assistance only when no reasonable possibility exists that such assistance would aid in substantiating the claim. Wood, 520 F.3d at 1348. The RO requested a VA medical opinion to help determine whether the Veteran's service-connected residuals of a gunshot wound contributed substantially or materially to the Veteran's cause of death. The Board finds that the May 2013 opinion is adequate for the purposes of adjudication, and includes an adequate statement of reasons and bases for the opinion rendered. Moreover, the May 2013 opinion was based on an accurate factual background consistent with the Board's own findings in this case. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); see also Nieves-Rodriguez, 22 Vet. App. at 295 (holding that "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion"). The Board finds that the opinion obtained complied with July 2011 Board remand directives and adequately considered pertinent evidence of record, to include relevant private medical opinions of record. See Stegall v. West, 11 Vet. App. at 270 (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). The Appellant has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). The Board finds that the duties to notify and assist the Appellant in substantiating her claim have been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). Laws and Regulations for Cause of Death Claims Death pension benefits are generally available to a surviving spouse or child, as a result of the Veteran's nonservice-connected death. See 38 U.S.C.A. § 1541(a) (West 2002). An appellant is entitled to these benefits if the Veteran served for 90 days or more, part of which was during a period of war; or, if the Veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected, which would have justified a discharge for disability; and, if the appellant meets specific income and net worth requirements. See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3 (2013). Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Gastric carcinoma is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to a service connection analysis regarding whether gastric carcinoma was related to service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board has reviewed all the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a claimant or obtained on his or her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis for the Cause of the Veteran's Death The Veteran's certificate of death shows that he died in March 1983. The certificate of death lists the immediate cause of death as gastric carcinoma. No contributory causes of death were identified on the death certificate. At the time of the Veteran's death, he was service-connected for disfiguring scars from a gunshot wound to the left cheek, rated 30 percent disabling; residuals of a bullet wound, through and through, right side of the abdomen with injury to Muscle Group XIX, rated 10 percent disabling; residuals of a gunshot wound to the right shoulder with injury to Muscle Group XXII, rated 10 percent disabling; and loss of teeth, numbers 8, 9, 10, and 11, rated as noncompensable. At the time of his death, the Veteran had a combined 40 percent disability rating. The Board finds that the Veteran did not experience symptoms of gastric carcinoma in service. Service treatment records reflect treatment for gunshot wounds in service, but do not reflect any complaints related to gastric carcinoma. Similarly, post-service treatment records and VA examinations dated in 1950 and 1965 do not reflect complaints, treatment, or diagnoses related gastric carcinoma. Instead, the Veteran was found to have a gastric ulcer in 1982, 37 years post-service, and gastric carcinoma was later diagnosed by biopsy in 1982. The Appellant does not contend, nor does the evidence of record establish that gastric carcinoma was incurred directly in service. For these reasons, the Board finds that a service-connected disability was not the Veteran's principal cause of death. The Board will next address whether the a service-connected disability was a contributory cause of the Veteran's death. The Appellant contends in a September 2008 statement that the Veteran suffered from pain in the neck and stomach, pulmonary tuberculosis, and kidney trouble due to service-connected gunshot wounds, and she submitted evidence a private physician, Dr. A.A., indicating that the Veteran's gunshot wound injury to his tongue in service resulted in a chronic peptic ulcer, and that it was possible that this peptic ulcer degenerated into a carcinomatous new growth. The Board finds that the Appellant has presented evidence alleging that a peptic ulcer was due to a service-connected gunshot wound (which resulting in injury to the left cheek, tongue, and teeth) and that this peptic ulcer, in turn, contributed to the Veteran's cause of death due to gastric carcinoma. The Veteran was not service-connected for gastric carcinoma or a peptic ulcer during his lifetime. Therefore, the Appellant may establish service connection for the Veteran's cause of death, in this case, by showing that a service-connected gunshot wound contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. §§ 3.303(d), 3.312(c) (2013). The Board finds that the weight of the evidence does not establish that a service-connected gunshot wound contributed substantially or materially to cause death, or aided or lent assistance to the production of the Veteran's death due to gastric carcinoma. The Board finds, first that the most probative evidence in this case, pertaining to the Veteran's cause of death, is his certificate of death and medical records leading up to his time of death. The Veteran was seen initially seen in September 1982 by Dr. R.A. for a bleeding ulcer, to rule out pancreatic mass malignancy. In a September 1982 letter from Dr. A.A. indicated that the Veteran's experienced epigastric discomfort secondary to a gunshot wound which injured the mouth, tongue, teeth, and upper lip. A medical certificate from Dr. L. shows that in October 1982, the Veteran was diagnosed with stomach carcinoma and had a gastrectomy. Hospital records from the Chong Hua Hospital show that the Veteran was admitted for a second time in October 1982 for surgery for gastric cancer. A March 1984 letter from Dr. L. shows the Veteran was initially seen in his office with epigastric pain, nausea, vomiting, weight loss, and dark colored stools. He had a pan endoscopy which showed partial gastric outlet obstruction, and a biopsy showed gastric carcinoma. Surgical intervention was made. An upper GI series completed one month later revealed recurrence of organic obstruction. The Veteran was then admitted at a local hospital. The certificate of death shows that the Veteran's cause of death was due to gastric carcinoma. In that regard, gastric carcinoma was stated to be the disease or condition directly leading to death with no antecedent causes or comorbid conditions identified on the certificate of death. Dr. A.A. was the signing physician on the certificate of death, and a March 1983 document, also signed by Dr. A.A. indicates that the peptic ulcer for which the Veteran initially sought treatment turned out to be gastric carcinoma. The Board finds that medical records dated prior to the Veteran's death in 1982 and 1983 and a March 1984 letter from Dr. L. describing his initial treatment of the Veteran for gastric carcinoma, show that the Veteran initially sought treatment for what appeared to be a gastric ulcer, but was ultimately diagnosed, via endoscopy and biopsy, with a partial gastric outlet obstruction and gastric carcinoma, which were surgically treated. A gastric ulcer was not noted on endoscopy, and the treatment records dated prior to the Veteran's death do not relate gastric carcinoma to a gastric ulcer. Additionally, there is no indication that the Veteran had diagnosed pulmonary tuberculosis or kidney disease at the time of his death, or that these disabilities contributed to his cause of death. The Board finds that this evidence is probative in that this medical evidence describes contemporaneous treatment of the Veteran leading up to his death. In a December 1983 letter, Dr. A.A. indicated that she became the regional health officer at the Veteran's municipality in 1974 and treated the Veteran for illnesses in his home. She stated that the Veteran was treated for symptoms of dyspepsia, epigastric discomfort, anorexia, and pain with antacids, analgesics, and anti-spasmodic drugs. She did not identify a time frame for such treatment. She stated that per the Veteran's history, he first experienced symptoms of epigastric discomfort after he was injured in service, and that he could not eat well due to pain associated with mastication and swallowing. She reported that symptoms related to epigastric discomfort were very occasional until September 1982. At that time, the Veteran had more severe symptoms, accompanied by vomiting, loose bowel movements, and severe abdominal pain. He was hospitalized and was diagnosed for a gastric new growth, which was operated on. He stayed home post-operatively, at which time his condition worsened and died in March 1983. In a June 1985 letter, Dr. A.A, stated that she was the attending physician of the Veteran, that her "impression of the case was chronic peptic ulcer considering the period of inadequate food intake during the time his tongue was wounded," that it took "more or less four months for that condition to heal," and during that period, there was a "great possibility for ulcer to develop," that this ulcer would have been healed by self-medication of symptoms, but that the area degenerated into "a carcinomatous or malignant new growth." She opined, therefore, that "there is a great possibility for some peptic ulcer to degenerate into a cancerous one." A May 2013 VA opinion was provided to help determine if a service-connected gunshot wound was a contributory cause of the Veteran's death due to gastric carcinoma. The VA examiner provided the opinion based on a review of the claims file, noting pertinent findings from the Veteran's past medical history and findings from his certificate of death. The VA examiner also discussed Dr. A.A.'s September 1982, December 1983, and June 1985 opinions. Dr. A.A. had stated with respect to a gunshot wound in service, that it took more or less four months for the Veteran's tongue to heal. The VA examiner stated while it is true that the Veteran may have developed an ulcer within four months as a result of decreased food intake, this ulcer would certainly heal with medications. He opined, therefore, that any recurrence of epigastric discomfort attributed to ulcer, and eventually gastric carcinoma, as in the case of this Veteran, can no longer be related to the residuals of his gunshot wound. The examiner noted that Dr. A.A, herself, stated that the wounds completely healed. Therefore, the Veteran's cause of death by gastric carcinoma was less likely than not caused by residuals of gunshot wounds to the cheek, teeth, and abdomen. According to the United States Court of Appeals for Veterans Claims (CAVC), "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. The Board finds that Dr. A.A.'s June 1985 opinion, that there was a "great possibility for ulcer to develop" due to issues with mastication in the four months that it took for the Veteran's gunshot wounds to heal, and that "there is a great possibility for some peptic ulcer to degenerate into a cancerous one." is too speculative to establish a causal relationship between a service-connected gunshot wound and the development of an ulcer that was diagnosed just prior to the Veteran's death. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the same June 1985 opinion, Dr. A.A. indicated that an initial ulcer, which she diagnosed posthumously based on the Veteran's report of having epigastric discomfort after he was injured in service, had healed. Service treatment records show that the Veteran sustained gunshot wounds in 1944. Thus, while Dr. A.A. indicated that an initial ulcer which began in 1944 had healed, and opined that it was possible for "some peptic ulcer" to become cancerous, in her opinion, she did not clearly relate the Veteran's gastric carcinoma to a healed ulcer secondary to a gunshot wound in 1944, versus a new ulcer diagnosed 37 years later of undetermined etiology. In providing her opinion, Dr. A.A. did not have an opportunity to review the claims file. While Dr. A.A. was familiar with the Veteran's condition at the time of his death, she did not have the opportunity to review post-service medical evidence, to include VA examinations dated in 1950 and 1965 and private treatment reports dated in 1963 and 1965, which showed no gastric complaints, despite the Veteran's report of having on and off pain in the tongue, and pain with swallowing. Additionally, Dr. A.A. did not address the significant 37-year gap in time between the Veteran's report of having initial epigastric pain around the time he was injured, the resolution of those reported symptoms, and the sudden increase in symptoms and increase in severity shown decades later in 1982. Because Dr. A.A.'s opinion is speculative, was not based on a review of the record, to include post-service treatment records, does not clearly address a gap between the Veteran's in-service history of symptoms and a post-service ulcer diagnosed in 1982, the Board finds that the opinion is not probative. See Reonal, 5 Vet. App. at 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the Board has accorded more probative weight to the May 2013 VA opinion than Dr. A.A.'s opinions. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). The Board finds that the VA opinion is consistent with the Board's own findings with regard to the chronology of event's proceeding the Veteran's gunshot wound in service and adequately discusses the opinions provided by Dr. A.A. The VA examiner noted that Dr. A.A. had stated, with respect to a gunshot wound in service, that it took more or less four months for the Veteran's tongue to heal. The Board finds that the VA examiner provided adequate reasons and bases for the opinion based on findings from the record and his own medical expertise, stating that while the Veteran may have had developed ulcer in the four months after his in-service injury, after such ulcer had healed, later epigastric symptoms or ulcers would not be related to the service-connected gunshot wound. For these reasons, the Board finds that the VA opinion provides competent, credible, and probative evidence showing that a service-connected gunshot wound did not contribute materially or substantially to cause the Veteran's death. Insomuch as the Appellant has attempted to establish a nexus through her own lay assertions, relating the Veteran's cause of death as well as pulmonary tuberculosis and kidney trouble to a gunshot wound injury, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case, the cause of gastric carcinoma, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The Board finds, that the weight of the competent, credible, and probative evidence shows that the Veteran's cause of death was due to gastric carcinoma, and that a service-connected gunshot wound did not contribute substantially or materially to cause death. For these reasons, the Board finds that the preponderance of the evidence is against the Appellant's claim of entitlement to service connection for the cause of the Veteran's death. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Appellant's claim. ORDER Service connection for the Veteran's cause of death is denied. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). VA provides certain benefits for a child of a veteran who is shown to be permanently incapable of self-support by reason of mental or physical defect by or before his or her 18th birthday. See 38 U.S.C.A. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1)(ii), 3.356 (2013). 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); 38 C.F.R. § 3.57 (2013). 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 her 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). The record shows that C.B. is an adult daughter of the deceased Veteran. C.B.'s birth certificate shows that she was born on June [redacted], 1966. She attained the age of 18 on June [redacted], 1984. The evidence of record shows that C.B. has Down syndrome (Trisomy 21) and that she exhibited characteristics of Down syndrome prior to attaining the age of 18. The Appellant contends in a August 2009 notice of disagreement, that C.B. is mentally incapable of work and requested an examination of C.B.'s physical condition. In a September 1984 lay statement, dated when C.B. was 18 years of age, friends of the Veteran and Appellant indicate that C.B. was born mentally retarded and was incapable of self-support since birth until the present time. The Appellant contends that her daughter was unable to keep up with school at an early age, started schooling at the age of 28 due to disability, and she submitted a February 2009 certification from C.B.'s elementary school, indicating that she was enrolled the fourth grade from 1998 to 1999, at the age of 32. In light of the congenital nature of C.B.'s disability and evidence indicating that she was mentally retarded and unable to complete an elementary school program prior to attaining the age of 18, the Board finds that a remand for a VA medical examination is necessary to assist in determining if C.B. became permanently incapable of self-support by reason of a mental or physical disability prior to attaining the age of 18 years. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule C.B. for the appropriate VA examination to assess the severity of her diagnosed Down syndrome and to help ascertain if she became permanently incapable of self-support by reason of a mental or physical disability prior to attaining the age of 18 years. The record must be made available for review in connection with this examination. All indicated tests and studies should be performed. The examiner should state, based on the available evidence, whether it is at least as likely as not that C.B. became permanently incapable of self-support by reason of a mental or physical disability prior to attaining the age of 18 years. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a clear explanation for his or her opinion and must provide a discussion of the facts and medical principles involved. 2. Thereafter, the RO/AMC should readjudicate the issue of entitlement to recognition of C.B. as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years. If the determination remains unfavorable to the Appellant, she should be provided with a supplemental statement of the case. The Appellant should be given an opportunity to respond to the supplemental statement of the case prior to returning the case to the Board for further review. 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs