Citation Nr: 1604265 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 09-00 182A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to helpless child benefits on behalf of the Veteran's son K.B., on the basis of permanent incapacity for self-support before he attained the age of 18. 2. Whether new and material evidence has been received for entitlement to helpless child benefits on behalf of the Veteran's son J.B., on the basis of permanent incapacity for self-support before he attained the age of 18. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from March 1973 to April 1975. The Appellant is the Veteran's surviving spouse on behalf of K.B., the Veteran's biological child. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Montgomery, Alabama RO now has jurisdiction over the appeal. In October 2015, the Appellant testified at a videoconference Board hearing conducted before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. As discussed below, the Board has assumed limited jurisdiction of the issue of whether new and material evidence has been received for entitlement to helpless child benefits on behalf of the Veteran's son J.B., on the basis of permanent incapacity for self-support before he attained the age of 18 pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999), because the Appellant filed a timely notice of disagreement to the September 2010 rating decision. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND K.B. The Appellant asserts that K.B. is entitled to VA benefits because he is a helpless child. The Appellant maintains that K.B. became permanently incapable of self-support prior to reaching the age of 18. K.B. was born in November 1983 and reached the age of 18 in November 2001. In order to establish such entitlement, it must be shown that the child was permanently incapable of self-support by reason of mental or physical defect as of his or her 18th birthday. 38 C.F.R. § 3.356(a). Rating determinations regarding helpless child status are 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 determination by the rating agency on competent evidence of record in the individual case. Id. A "child" for VA benefits purposes 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 Appellant asserted at the October 2015 videoconference Board hearing that K.B. suffered from schizophrenia and cardiac problems prior to the age of 18, which rendered him permanently incapable of self-support. See Hearing Transcript at 5. A submission from K.B., dated from January 2008, states that he suffers from bipolar disorder and "leaking heart veins". The medical evidence of record shows that K.B. went to the emergency department in April 1999 for psychiatric reasons. K.B. was diagnosed with delusional disorder, and was assessed with an Axis V GAF of 23. K.B. was also seen by the same emergency department in September 2001 for psychiatric reasons and assessed with schizophrenia, paranoid type and a GAF of 20 at the time of admission. The Appellant also stated that K.B. was hit by a car as a teenager, and contracted HIV after being raped by an older man. Hearing Transcript at 5, 10. The Appellant further stated that K.B. was admitted to the emergency room at age 17 for psychological reasons, suffered from seizures, and was enrolled in special education classes. Hearing Transcript at 6-8. The Appellant stated that K.B. did not earn a high school diploma, but received a certificate showing that he went to school for twelve years. Hearing Transcript at 8. The Appellant stated that K.B. worked at a fast food restaurant prior to the age of 18, but that K.B. received special accommodations due to his seizures. Hearing Transcript at 6-7. A February 2002 correspondence indicates that K.B. worked 20-25 hours a week at a fast food restaurant. The Board finds that an examination and opinion based on a full review of the record would be helpful in resolving this claim. The Board also notes that records from Dr. Majors are still outstanding. While an attempt was made in March 2003 to obtain records, additional efforts should be made. In June 2013 the Montgomery, Alabama RO sent a letter to receive new authorizations for medical records. A medical authorization was received on behalf of J.B., but not on behalf of K.B. The Appellant should be afforded another opportunity to authorize the release of those records. The duty to assist requires that these outstanding medical records be obtained and considered in adjudicating the Veteran's claim. 38 C.F.R. § 3.159 (2015). J.B. At the Appellant's videoconference Board hearing in October 2015, the Appellant requested that evidence on behalf of J.B. be taken on the record, and indicated that she thought the Board had jurisdiction over J.B.'s claim. Hearing Transcript at 2-3. J.B. was most recently denied status as a helpless child in a September 2010 rating decision. The Appellant and J.B. sent correspondence to the RO in February 2011, and June 2011 which is now construed as a Notice of Disagreement. 38 C.F.R. § 20.201 (2015). No subsequent action, however, was taken such as supplying the Appellant with a Statement of the Case (SOC) in reference to her claim. Where a notice of disagreement has been timely filed with regard to an issue, and a SOC has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the Board finds that a remand is necessary for the issuance of a SOC for the issue of whether new and material evidence has been received for entitlement to helpless child benefits on behalf of the Veteran's son J.B., on the basis of permanent incapacity for self-support before he attained the age of 18. Accordingly, the case is REMANDED for the following action: 1. Contact the Appellant and inform her that the authorizations for release of K.B.'s private medical records from Baptist Medical Center South, Behavioral Medicine, Cross bridge Behavioral Health, Dr. Knox, and Dr. Majors expired. Request that she resubmit signed authorizations for release of private medical records from these facilities, as well as any other private facility. If such records are unavailable, the claims file must be clearly documented to that effect and the Appellant notified in accordance with 38 C.F.R. § 3.159(e). 2. Only after the above-requested development has been completed, arrange for an examination of K.B. and a review of the evidence of record by a panel of a VA physician (M.D.) AND a vocational expert in order to obtain an opinion as to whether, prior to or upon reaching the age of 18 years, K.B., became permanently incapable of self-support. The focus of analysis shall be on K.B.'s condition at the time of his 18th birthday in November 2001. a) The reviewer must opine as to whether it is at least as likely as not (probability of 50 percent or greater) that K.B. (the Veteran's son) was permanently incapable of self-support due to mental or physical incapacity as of his 18th birthday in November 2001. The explanation of rationale for this opinion should include a discussion regarding the employment and functional limitations that existed at age 18. In answering the above, the examiner is asked to consider: (1) K.B.'s ability to perform self-care functions, and ordinary tasks expected, (2) K.B.'s education (length, and learning ability), and (3) K.B.'s employment history, including his working at a fast food restaurant prior to his 18th birthday. b) If it is determined that K.B. was at the time of his 18th birthday capable of self-support, the examiner should identify the evidence that supports that conclusion, and discuss his industrial and employment capabilities. 3. The RO/AMC should issue a SOC with respect to the issue of whether new and material evidence has been received for entitlement to helpless child benefits on behalf of the Veteran's son J.B., on the basis of permanent incapacity for self-support before he attained the age of 18. The Appellant should be advised of the time period in which a substantive appeal must be filed in order to obtain appellate review of this issue. 4. Thereafter, readjudicate the claim of entitlement to helpless child benefits on behalf of the Veteran's son K.B., on the basis of permanent incapacity for self-support before he attained the age of 18. If the benefits sought on appeal remains denied, the Appellant and her representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board. (CONTINUED ON NEXT PAGE) 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 2014). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).