Citation Nr: 1332536 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-15 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits based on helpless child status. REPRESENTATION Appellant represented by: Jeffrey J. Bunten, Attorney ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1969, including honorable service in Republic of Vietnam. The Veteran died in March 1992. The appellant is his son. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the appellant requested a hearing in his April 2010 Substantive Appeal, but his attorney withdrew it in September 2010 due to the appellant's incarceration. No request has been made to reschedule the hearing. In addition to the paper claims files, there is also an electronic claims file in Virtual VA and VBMS. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDINGS OF FACT 1. The appellant was born in November 1979 and attained the age of 18 years in November 1997. 2. The appellant has not been shown to have been permanently incapable of self-support by reason of a mental or physical condition prior to attaining the age of 18. CONCLUSION OF LAW The criteria for entitlement to DIC benefits based on helpless child status have not been met. 38 U.S.C.A. § 101(4) (A) (West 2002); 38 C.F.R. § 3.356 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the appellant. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claims, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the appellant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the appellant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in May 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The appellant was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The May 2008 letter also included a list of information which can help the VA determine if the appellant was "helpless for VA purposes." Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent by the appellant (or on his behalf) over the course of this appeal, the appellant clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the appellant's contentions as well as the communications provided to the appellant by VA, it is reasonable to expect that the appellant understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by a representative and has familial help, both of whom have submitted argument in support of his claim. These arguments have generally referenced the criteria for a "helpless child" determination. Thus, the Board finds that the appellant, through his representative and aunt, has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the appellant. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the appellant are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. The appellant's Social Security Administration (SSA) disability determination and accompanying medical records are contained in the claims file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claim. Because the appellant was over 18 years of age at the time of the claim for helpless child benefits, no VA examination is required to determine his eligibility, as his capacity for self-support prior to age 18 is the focus of the claim. The Board finds that there is sufficient evidence to make a determination in this case, and the appellant is not prejudiced by a decision at this time. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria In this case, the appellant maintains that he is a "helpless child" of the Veteran and, as such, he is entitled to DIC benefits. He reports that he is unemployed as a result of disability and that he is permanently incapable of self-support. In regard to his disability, he has indicated he has mental/cognitive deficits from a November 1996 car accident and that he has had some toes amputated-both of which cause him to be unemployed. The term "helpless child of a Veteran" is defined, in part, as a child who is permanently incapable of self-support by reason of mental or physical defect by or before his or her 18th birthday. 38 U.S.C.A. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1)(ii), 3.356. Under 38 C.F.R. § 3.356(b), rating determinations will be made solely on the basis of whether the child is permanently incapable of self-support through his or her own efforts by reason of physical or mental defects. The question of permanent incapacity for self-support is one of fact for the rating agency to determine based on competent evidence of record in each individual case. Rating criteria applicable to disabled Veterans are not considered controlling. Rather, the following factors are for consideration. (1) Evidence that a claimant is earning his/her own support is prima facie evidence that he/she is not incapable of self-support. Incapacity for self-support will not be considered to exist when the child, by his/her 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/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 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. The Court has held that, in cases such as this, the "focus of analysis must be on the claimant's condition at the time of his or her 18th birthday." Dobson v. Brown, 4 Vet. App. 443, 445 (1993). In other words, 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 is improvement sufficient to render the claimant capable of self- support. Id. If the claimant is shown to be capable of self- support at eighteen, VA is required to proceed no further. Id. Factual Background and Analysis The appellant and his aunt, have maintained that the appellant was involved in a hit-and-run automobile accident when he was just 17 years old. Following a lobectomy, they maintain that this accident caused him to be incapable of self-support prior to his 18th birthday. In his claim, the appellant, through his aunt, indicated that since his lobectomy, he has had seizures, forgetfulness, and mood swings. Additionally, the appellant contends that the 2007 amputation of all the toes on his right foot also prevents him from obtaining employment. A review of the record shows that on November 7, 1996, the appellant was found unconscious on the street. At the time, treating professionals indicated that he suffered a closed head injury from an automobile accident. He was placed in a medically inducted coma, and eventually underwent a left frontal lobectomy. At the time of discharge on November 25, 1996, he was awake, alert, and followed commands intermittently, but consistently. Also at discharge, his feeding tube was continued and he was able to stand with the moderate assistance of two others. His cranial nerves were intact and his motor strength is normal. The treating physician indicated that the appellant "is doing very well." An occupational therapy note dated on his discharge day indicated that the Veteran did not have any initiation for any tasks, and he required frequent verbal and physical cues during the 20 minute treatment session. The occupational therapist indicated that the appellant would benefit from additional occupational and physical therapy. He was discharged to a nearby rehabilitation facility. There were no additional treatment records identified by the appellant, his aunt, or attorney dated from the time of the accident in November 1996 until his 18th birthday in November 1997. The appellant did not return to school following his accident. In 2007, the appellant reported that he was out looking for work, and he was out for many hours in the snow and cold. In February 2007, due to gangrene, his toes on the right foot were amputated. In March 2007, the Veteran filed for SSA benefits. He only indicated that he was unemployable due to his right toe amputations. He stated that the onset of his unemployability was in February 2007, and noted that he was able to work prior to the amputations, but has not been able to work since. The appellant specifically told SSA that his amputation of all the toes on his right foot limits his ability to work. He made no mention of his history of a left frontal lobectomy. He indicated that he stopped working in December 2006 because his work was considered "temp work." At the time of his SSA claim in March 2007, the Veteran reported a work history dating back to 2000. He did not include many specifics regarding his employment, but noted he worked as a cook in 2000, and he worked as a laborer at two different places in 2004 and 2006, respectively. At his most recent job, he indicated that he was lifting wood for 8 hours a day. In the remarks section of his application, he reported the 1996 lobectomy, but did not assert whether he had any disabling effects related to the lobectomy. The appellant also submitted a handwritten form to SSA indicating his functional impairment. When asked what he was able to do before his foot disability that he cannot do now, the appellant handwrote, "I was able to work." He denied any problems with personal care and denied needing reminders to take care of himself or take medication. He indicated that he is able to prepare his meals on a daily basis, and foot pain can impact his ability to cook secondary to pain. He endorsed being able to clean, do laundry, and iron-until his right foot begins to hurt. He is able to go out every day, but is unable to go alone due to his right foot disability and his history of seizures. He indicated that he is unable to drive because his foot is not healed yet. He is able to go shopping in stores to purchase anything he needs. The appellant further indicated that he is unable to pay bills, count change, handle a savings account, or use a checkbook/money order. In terms of hobbies and interests, he indicated he likes to read, watch T.V., and clean up. Sometimes, he has to sit down when his foot starts hurting. The appellant further stated that he socializes with others, attends church, and hangs out at family members' houses. He denied needing reminders to go places, and indicated that his disabilities impact his ability to lift, stand, walk, kneel, and his memory. He stated that he can pay attention for "as long as I need to," and he can follow written and spoken instructions well. SSA denied the appellant's claim in May 2007 finding that he is impaired, but his amputation of all the toes on the right foot does not severely restrict his ability to perform work-related activities. In July 2007, the appellant appealed the decision and requested a hearing. At that time, he also indicated that his seizures render him unemployable as he had a grand mal seizure in May 2007. The appellant reported that he needs help in everything he does. He cannot ambulate easily because he loses balance, and he cannot drive because he does not know when he may fall or have another seizure. He also reported a poor memory due to his left frontal lobectomy. The appellant further indicated that since his last disability report, it takes him longer to finish daily activities, and that he wishes he could work, go to school, and drive, but he is unable to do them. He filed another SSA claim for his left frontal lobectomy and indicated its onset in October 1997. The appellant was examined to determine his ability to perform work-related activities in light of his mental health issues. The appellant reported that after his accident, he worked at two different restaurants, but could not recall the dates or details of the employment. He stated that he just stopped going to work, and has recently been looking for work, but has not found one yet. The examiner (psychologist) indicated that the ability to understand, remember, and carryout instructions is affected by his impairment. The examiner related that the appellant had marked restriction on his ability to understand and remember simple instructions, carry out simple instructions, the ability to make judgments on simple work-related decisions, understand and remember complex instructions, and the ability to make judgments on complex work-related decisions. The examiner opined that the appellant's cognitive ability is below average. His impairment moderately impacts his ability to interact appropriately with co-workers or the pubic and respond appropriately to usual work situations and to changes in a routine work setting, and has a mild impact on his ability to interact appropriately with supervisors. The examiner further indicated that the appellant's language skills would affect his employability, and his head injury in 1996 impacted his cognitive abilities. The examiner noted that when questioned, the appellant had the expectation of failure-especially when learning new material or performing memory tasks. Testing revealed that the appellant's verbal abilities are not as well developed as his nonverbal cognitive abilities. His ability to express himself and comprehend others is both below average. He demonstrated below average verbal cognitive abilities and his consistent with his reported head injury impacting his left brain hemisphere. The examiner found that the appellant's nonverbal abilities are in the low-average range as he demonstrates relative strength in his nonverbal reasoning compared to his verbal reasoning. He demonstrated a significant weakness in areas such as auditory working memory, visual memory, and language. The appellant denied any psychiatric concerns, and indicated that he has a work history including work at restaurants, but he could not remember details/dates. The examiner opined that due the appellant's cognitive and memory problems, entitlement is incapable of managing his funds. He was diagnosed as having cognitive disorder, not otherwise specified, with serious symptoms in occupational functioning. Upon careful review of the evidence of record, the Board finds that the appellant was not shown to be a "helpless child" for VA purposes prior to turning 18. In other words, the preponderance of the evidence is against finding that the Veteran was permanently incapable of self-support by reason of a mental or physical condition prior to attaining the age of 18. First, in adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a claimant is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the claimant's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) The evidence of record clearly supports the appellant's assertion that he underwent a significant brain trauma and surgery in 1996, when he was just 17 years old. The evidence of record at that time showed some cognitive impairment, but treating professionals indicated that he was doing well and could benefit from continued physical and occupation therapy. The appellant has also competently and credibly testified that he had a history of working in restaurants or as a laborer in the years following his 1996 accident. Additionally, the Board finds it significant that in his March 2007 application for SSA benefits, the appellant mainly asserted that his 2007 right foot disability was the cause of his unemployability. He further stated that he was able to work before the amputations, but because of them, he cannot. The Board finds these statements as to his ability to work probative as to the issue of the Veteran's ability to support himself. Finally, the Board finds the Veteran's assertions in a July 2007 submission to SSA compelling inasmuch as he reported an increase in cognitive problems following a grand mal seizure in May 2007. The appellant and his aunt are certainly competent to report the appellant's symptoms following his 1996 accident, but they are not competent to make a determination as to whether the appellant was permanently incapable of self support prior to the age of 18. Moreover, the Board finds the statements from the appellant and his aunt are less than credible to the extent that they contend the appellant was permanently incapable of self support prior to the age of 18. Indeed, the Veteran had a significant brain injury/accident in 1996. But the great weight of the evidence of record shows that the appellant worked in the years following his injury, and this is certainly indicative of his ability to support himself beginning at 18 years of age. Additionally, the Board finds that even if the Veteran was incapable of self- support prior to the age of 18, there is significant evidence of record showing that this incapability was not permanent. In other words, even if he was incapable of self-support at 18, his condition improved to the point where he was able to support himself. The appellant clearly stated to the SSA psychological examiner that following his accident he had employment at two different restaurants, and in other submissions to SSA, he reported employment in 2000, 2004, and 2006. Further, at the time his right foot was frostbitten, he was out in search of employment. The Board is aware and agrees that the appellant has a history of cognitive impairment since the 1996 accident and it has impacted his employability. The Board finds, however, that the great weight of the evidence of record does not show that these cognitive impairments caused him to be permanently incapable of self support at the age of 18. Moreover, the appellant's physical disabilities, which made it difficult for him to continue his employment as a laborer, have not been shown to exist prior to age 18. Again, the amputations of the right toes happened in 2007. As a final point, the Board notes that the appellant claims he has been found to be a helpless child for SSA benefit purposes. Although VA is required to consider the SSA's findings, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Adjudication of VA and SSA claims is based on different laws and regulations. Thus, SSA's determination has little probative value in this matter, and is not sufficient, in this case, to overcome the other evidence that does not establish that the appellant is a helpless child of the deceased Veteran for the purposes of obtaining DIC. For the reasons discussed above, the Board finds that entitlement to DIC benefits on the basis of the appellant being a "helpless child" before the age of 18, under 38 U.S.C.A. § 101(4)(a) (ii), cannot be established because it has not been shown that the appellant was permanently incapable of self-support by reason of a mental or physical condition prior to attaining the age of 18. The questions at issue for "helpless child" status for an adult are whether the appellant was disabled and incapable of self-support upon his achieving the age of 18, and if so, whether this incapacity was chronic and ongoing in nature so as to preclude self-support in adulthood. 38 C.F.R. § 3.356; Dobson, supra. As the preponderance of the evidence is against finding that the appellant was impaired prior to age of 18, the analysis is at an end, and the appellant cannot achieve claimant status as the "helpless child" of the deceased Veteran, and hence any claim for DIC benefits on that basis cannot be supported. Id. Ultimately, the Board finds that the preponderance of the evidence is against recognizing the appellant as the helpless child of the Veteran. ORDER Entitlement to DIC benefits as an adult helpless child on the basis of permanent incapacity for self-support prior to reaching the age of 18 years. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs