Citation Nr: 1310511
Decision Date: 02/12/13	Archive Date: 04/10/13

DOCKET NO. 06-29 653         DATE	FEB 12 2013

On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California

THE ISSUE

Entitlement to recognition of C.P.J, as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to the age of eighteen.

REPRESENTATION

Veteran represented by:      Disabled American Veterans

ATTORNEY FOR THE BOARD

S. Dale. Counsel

INTRODUCTION

The Veteran served on active duty from January 1943 to December 1944.

This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

In a November 2004 rating decision, the RO denied the Veteran's claim for aid and attendance allowance for his spouse. After the Veteran expressed disagreement with the RO's denial of this claim in January 2005 and was provided a statement of the case in July 2006 which continued to deny the claim, he perfected an appeal to the Board in September 2006. However, in a February 2009 rating decision, the RO granted the Veteran's claim, establishing aid and attendance allowance for the Veteran's spouse, effective from October 9, 2008. The Veteran has not disagreed with the assigned effective date. As this claim has been granted, the appeal has become moot. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection).

The Veteran was scheduled for a Travel Board hearing before a member of the Board in September 2012, which he cancelled.

In October 2011, the Veteran filed to a claim to have a second son recognized as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to the age of 18. In December 2011, the Veteran filed a claim for special monthly compensation based on the need for aid and attendance. However, these claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Accordingly, the Board does not have jurisdiction over them, and they are REFERRED to the AOJ for appropriate actions. Godfrey v. Brown, 7 Vet. App. 398 (1995); Bernard v. Brown, 4 Vet. App. 384,394 (1993) (where the Board addresses a question that has not been

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addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby).

Preliminary note

At all times during the pendency of the appeal, the RO referred to the subject of the present claim as C.M.J, rather than C.P.J. This clerical error was perpetuated by the Veteran's representative in a January 2005 notice of disagreement. However, the record contains a December 2003 statement from C.P.J., and C.P.J.'s Social Security number, provided by the Veteran in connection with this claim, was used to obtain SSA records concerning disability benefits for C.P.J. In light of above, the subject of the current claim is C.P.J.

Representation

When the Veteran filed his claim in July 2003, he was represented by Veterans of Foreign Wars of the United States. However, in May 2007, the Veteran submitted a completed VA Form 21-22 (Appointment of Veterans Service Organizations Claimant's Representative) in favor of Disabled American Veterans (DAV). At all times subsequent to May 2007, DAV has acted on behalf of the Veteran in all matters concerning VA. As such, DAV is the Veteran's representative of record.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).

FINDINGS OF FACT

1. The Veteran's son, C.P.J., was born in February 1948.

2. The Veteran's son, C.P.J., 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 eighteen.

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CONCLUSION OF LAW

The criteria for entitlement to VA benefits for a helpless child of the veteran have not 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 CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principle 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provide prior to an initial unfavorable AOJ decision.

In VA correspondence dated in October 2003, the Veteran was informed of what evidence was required to substantiate his claim pertaining to helpless child benefits claim, and of his and VA's respective duties for obtaining evidence. The Board

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notes that the Veteran was not notified of how VA determines disability ratings and effective dates as per the United States Court of Appeals for Veterans Claims' (the Court's) holding in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). at the time of the initial adjudication of his claim. However, such was a practical and factual impossibility since the Court's decision in Dingess/Hartman was not promulgated until March 2006. A letter to the Veteran dated in June 2007 provided him with sufficient Dingess/Hartman notification, and the Veteran's claim was subsequently readjudicated in supplemental statements of the case July 2008 and February 2009. As such, there was not prejudice to the Veteran concerning the timing of these notice elements. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).

In light of above, the content of the October 2003 and June 2007 letters fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice.

All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard, supra; Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case.

Duty to assist

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). Private treatment records and records from the Social Security Administration (SSA) pertinent to this claim were obtained and associated with the claims folder. The Board has also perused the medical

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records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims.

Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. However, a VA examination is not necessary in the present case since the determinative issue is whether the Veteran's son, C.P.J., was disabled at the time he attained eighteen years of age rather than his current level of disability.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained, and thus, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartaccio v. Principi, 16 Vet. App. 183 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard, supra; see also 38 C.F.R. § 20.1102 (2012).

Legal criteria

The term "child" for purposes of Title 38 of the United States Code is specifically defined. For purposes of determining eligibility as a claimant under Title 38, a child must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.356.

The fact that a child is earning his or her own support is prima facie evidence that he or she is not incapable of self-support, and 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. 38 C.F.R. § 3.356(b)(1). A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of eighteen years, may be so held at a later date

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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, should not be considered as rebutting permanent incapability of self-support otherwise established. 38 C.F.R. § 3.356(b)(2).

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 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 there 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. 38 C.F.R. § 3.356(b)(3). 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(b)(4).

The Court has held that in cases such as this, the "focus of analysis must be on the [claimed helpless child'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 claimed helpless child's condition subsequent to his or her eighteenth birthday is not for consideration. However, if a finding is made that a claimed helpless child was permanently incapable of self-support as of his or her eighteenth birthday, then evidence of the claimed helpless child's subsequent condition becomes relevant for the second step of the analysis, that is,

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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.

Analysis

Initially, it appears that C.P.J, died during the pendency of the appeal. {See an August 2012 VA Form 21-0820 (Report of General Information).) However, the appeal is not abrogated by C.P.J.'s death, as the benefits sought by the Veteran may be granted from the filling date of the Veteran's claim until the date of CPJ.'s death as per 38 C.F.R. § 3.400(b) or (c), and 38 C.F.R. § 3.401(b). See 38 C.F.R. § 3.403(a)(1) (2012). Accordingly, the Board will proceed in adjudicating the Veteran's appeal.

The Veteran contends that C.P.J, became permanently incapable of self-support prior to the age of eighteen, and the Veteran asserts that he should be considered a child of the Veteran for VA purposes under 38 U.S.C.A. § 101(4) (a) (ii) on that basis. The record reflects that C.P.J, was born in February 1948. Accordingly, he attained eighteen years of age in February 1966.

There are no medical records pertaining to CPJ.'s health dated prior to February 1966.

In statements received by the RO in October 2005 and September 2006, the Veteran asserts that C.P.J, was a "sickly" child, experiencing repeated pulmonary infections, asthma, diabetes, chronic obstructive pulmonary disease, gout, a swollen liver and depression during his "formative years" which were aggravated by air pollution. The Veteran asserts that CPJ.'s poor health prior to February 1966 caused him to be expelled from high school, although he did graduate after attending night classes. According to the Veteran's statements. C.PJ. has been supported by the Veteran since approximately 1963 and was most recently employed in 1976.

The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368

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(2005). To this extent, the Board finds that the Veteran is competent to report that C.P.J, experienced health problems as a child.

However, competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later 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 Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.").

The Board finds that the Veteran's statements concerning whether C.P.J, was rendered permanently incapable of self-support prior to the age of eighteen are less than credible when considered with the record as a whole.

The record reflects that C.P.J, was denied SSA disability benefits in August 2002 and January 2003. The treatment records on which these denials were based, to include a May 2002 private examination report from Dr. Yost, reflect that, while C.P.J, was single and living in a trailer on his parents' property at that time, he was a "well-functioning" teacher for more than 20 years and was most recently employed in 1997. The May 2002 report also reflects that, after attaining eighteen years of age, C.P.J, earned a Bachelor's degree, was qualified in adult and elementary education, and was a published author.

Based on the foregoing, the Board finds the Veteran is not credible regarding his assertions that C.P.J, was permanently incapable of self-support prior to the age of eighteen. See Curry v. Brown, 7 Vet. App. 59, 68 (1994), (contemporaneous evidence has greater probative value than history as reported by the appellant). In this case, the Veteran's recent statements in this matter are inconsistent with contemporaneous private treatment records. Although the Board notes that Veteran's statements concerning C.P.J.'s health problems as a child, his assertion that his son was permanently incapable of self-support prior to February 1966 is contradicted by the evidence of record showing that C.P.J, earned a college degree, was employed for more than twenty years and became a published author after

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February 1966. Accordingly, these recent statements are afforded little probative value.

In short, there is no medical evidence of record that, prior to the age of 18, the Veteran's son at issue was permanently incapable of self-support. Accordingly, recognition of the Veteran's son at issue as a helpless child is not warranted.

Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Entitlement to recognition of C.PJ. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to the age of eighteen is denied.

U.R. POWELL 
Veterans Law Judge, Board of Veterans' Appeals

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