Citation Nr: 1611590 Decision Date: 03/22/16 Archive Date: 03/29/16 DOCKET NO. 05-05 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to special monthly dependency and indemnity compensation (DIC) based on recognition as a helpless child of a deceased veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years. REPRESENTATION Appellant represented by: Arthur F. Menchavez, Agent ATTORNEY FOR THE BOARD K. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1941 to January 1943 and from April 1945 to June 1946. The Veteran died in early 1947. The Appellant seeks benefits as the Veteran's surviving son. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In December 2006, the Board denied the Appellant's claim. He appealed the decision to the Court of Veterans' Claims (Court). In April 2009, the Court remanded the case to the Board pursuant to a Joint Motion for Remand. In February 2010, the Board remanded the claim for further development. In November 2012, the Board again denied the Appellant's claim. The Appellant brought the case before the Court, which vacated the Board's decision and remanded the case in a March 2014 memorandum decision. In October 2014, the Board remanded the claim for additional development, consistent with the Court's decision, to include remanding for a medical opinion. The opinion provided in March 2015 addressed the Appellant's hearing loss however the examiner could not provide an opinion as to whether the Appellant was mentally incapable of employment prior to age 18 because of lack of mental health records. However, neither the Appellant nor his representative had ever asserted that the Appellant has a mental disability. The Board therefore remanded the claim in August 2015 for an additional medical opinion. The requested development has been completed by the RO and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Appellant was born in July 1942 and attained the age of 18 in July 1960. 2. The Appellant did not become permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria for entitlement to helpless child benefits on the basis of permanent incapacity for self-support prior to attaining the age of 18 are not met or approximated. 38 U.S.C.A. §§ 101(4)(A) (West 2014); 38 C.F.R. § 3.57, 3.356 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify has been satisfied through notice letters dated April and June 2004 that fully addressed all notice elements. These letters informed the Appellant of what evidence was required to substantiate his claim and of the Appellant's and VA's respective duties for obtaining evidence. The Appellant was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant 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 claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Appellant have also been obtained. The Appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Appellant in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2015). The Appellant was provided VA medical review of the evidence in October 2015 and March 2015, which are adequate for the purposes of determining service connection as they involved a review of the Appellant's pertinent medical history as well as provided an opinion with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). All relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. The Appellant asserts, through numerous statements from his brother, who is also his Agent, that he fell from ladder at the age of 12 or 13 and since that time has had difficulty hearing; that he has a deformed back, and was unable to complete school due to back pain. There are also statements that in the late 1960's the Appellant attempted to take courses in tailoring, but could not continue his pursuit due to recurrent back aches. Lastly, the Appellant asserts that he has worked as a handyman for his mother and was dependent on her for support. The term "child" includes a person who is unmarried and under the age of 18, or who, before attaining the age of 18 years, became permanently incapable of self-support, or who is between the ages of 18 and 23 and pursuing a course of instruction in an approved educational institution. 38 U.S.C.A. § 101(4) (West 2014); 38 C.F.R. § 3.57 (2015). The Appellant is now in his 70's. Thus, to be considered a child of the Veteran it must shown that he is a helpless child (i.e., that he became permanently incapable of self-support by the age of 18). For helpless child status, it must be shown that the child became permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. 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 determination by the rating agency on competent evidence of record in the individual case. Rating criteria applicable to disabled veterans are not controlling. Principal factors for consideration are: (1) The fact that a claimant is earning his or her own support is prima facie evidence that he or she is not incapable of self-support. 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. (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 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. (3) It should be borne in mind that 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. (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 "helpless child" cases, the focus must be on the claimant's condition at the time of his or her 18th birthday. See 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 18th birthday is not for consideration. If a finding is made that a claimant was permanently incapable of self-support as of his or her 18th birthday, however, 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. See Dobson, 4 Vet. App. at 445. If the claimant is shown to be capable of self-support at age 18, VA is required to proceed no further. Id. In this case, the Appellant was born in July 1942 and is now in his 70's; he attained the age of 18 in 1960. In order to be recognized as a helpless child the evidence must therefore show that the Appellant became permanently incapable of self-support by reason of mental or physical defect prior to July 1960. The Appellant has not alleged, and the evidence does not suggest that his claimed helplessness is due to any mental defect. His apparent sole contention is that he is physically limited because of a back deformity and a hearing deficiency. However, the preponderance of the evidence is against such a finding that would support a grant of the benefit. As evidence to support his claim, the Appellant submitted his certificate of baptism; a 1959 account statement from the Philippine National Bank; and the Appellant's elementary and secondary school permanent records. The Appellant's brother also alleged that the Appellant was hospitalized in the 1950's, but that these records are no longer available. Also of record are documents indicating that the Appellant started primary school at a later age, noted by transcripts, and that there were expenditures for hearing aids in 1958. There is a January 1957 "Consultation" document noting that the consultation was authorized for the Appellant, but does not indicate if it is a medical consultation or the purpose of the consultation. There are also records showing that the Appellant was enrolled in high school from 1960 but stopped attending in 1962. Additionally, records show that the Appellant enrolled in a tailoring course in June 1968; and that he sent letters in January and February 1971 stating that he had not received his training allowance checks from VA. Affidavits submitted by E.S. and A.G. (family friends), indicated that the Appellant had hearing difficulties and a "hunchback" condition making him dependent for support from his family. A.G. noted that the Appellant tried not to be a burden to anyone despite his physical limitations and occasionally did some buying and selling of food and drinks. A medical certificate from E.C., M.D., dated October 2007, reported a history of a fall at age 12 and that the Appellant had progressive kyphosis secondary to Pott's disease and was nonproductive since the start of the disease. A medical certificate from J.R.C., M.D., noted that the appellant was examined in October 2007 and was found to have bilateral profound hearing loss. The physician recommended a cochlear implant or hearing aid. Dr. J.R.C. stated that based on documents dated March 1958, it was his opinion that the appellant's hearing loss started in 1958. A review of the records shows that there is no evidence that the Appellant was permanently incapable of self-support prior to attaining the age of 18. In the present claim, there is no evidence of record, other than the recently-obtained lay statements, that he was disabled and incapable of self-support prior to the age of 18. The evidence submitted shows that the Appellant was in school and that he was a ward of the Philippine National Bank in the 1950's. However, the Veteran's remaining minor children were also wards of the Philippine National Bank and the Board does not read into the status as a "ward" of the bank that the Appellant was per force a helpless child. Additionally, other records of file show that the Appellant was enrolled in secondary or high school from 1960 to 1962, and in a tailoring course in 1968 which suggests that he was pursuing vocational studies after he turned 18. The Appellant's brother has specifically asserted that the Appellant has permanent physical handicaps and was dependent on his mother and now on his siblings for assistance. In addition, the Appellant's brother claims that the VA knew of the disability and paid for it. However, there are no treatment records associated with the claims file. Additionally, such records are not available from the hospitals identified by the Appellant's brother. Moreover, his assertions that the Appellant received VA payments on account of disability are unsupported by the record; the record does not include any documents of payments to the Appellant or for the Appellant. Other than the Appellant's brother's assertions, there is no evidence showing that the Appellant was disabled prior to turning 18. The evidence indicates that the Appellant had a back deformity or "hunchback" condition and some degree of hearing loss prior to attaining the age of 18. A relevant question therefore becomes whether given that deformity or in combination with his hearing loss rendered him "helpless" within the meaning of the law. As a part of the duty to assist the Appellant in the development of his claim, the Board sent his claim and evidence for a VA medical opinion. In October 2015, the VA examiner noted that the Appellant was diagnosed with kyphotic deformity, which is an abnormal curvature of the thoracic or thoracolumbar spine characterized by prominence of the mid/upper back. Kyphotic deformity can be due to a number of reasons such as traumatic (compression fractures due to falls), congenital, degenerative, neoplastic, or infectious (vertebral collapse due to bone lysis secondary to bacterial or tuberculosis infection e.g. Pott's disease). The examiner noted that pertinent evidence of record is a 2007 medical certificate from a private orthopedic surgeon, diagnosing the Appellant with kyphosis secondary to Pott's disease, which was supported by x-rays of the thoracolumbar spine. The examiner concluded that the Appellant was not totally incapacitated and dependent before the age of 18 because of recurring back pain. Therefore, based on this premise, it is less likely than not, the Appellant was permanently incapable of self-support by reason of physical defect prior to reaching the age of 18 years. The Appellant's brother has suggested that the VA examiner's opinion is not probative because he did not have an in-person examination of the Appellant prior to forming an opinion. Reiterating, however, the Appellant's current condition is not at issue. At issue was the state of his health prior to 1960, and based upon the limited medical evidence available the VA examiner formed an opinion that the Appellant was not permanently incapable of self-support by reason of physical defect prior to reaching the age of 18 years. The hearing difficulty or a back disability is not evidence of incapacity for self-support by reason of physical defect. Although the Appellant has been diagnosed with profound hearing loss, there is no evidence of record detailing the level of hearing loss of the Appellant prior to his 18th birthday. Further, the evidence of record, either from affidavits, lay statements, and school records, does not support the contention that the Appellant had profound hearing loss that limited his ability to function either in school, in his tailoring course, or activities of daily living. There is only evidence of the beginning of a hearing disability. The Appellant also suggests that evidence of high absenteeism in school, or his inability to complete secondary education or complete course work is tailoring is evidence of the Appellant being helpless. However, given the VA examiner's observations, these assertions amount to speculation which is not a basis upon which to grant the benefit. The preponderance of the evidence is against the Appellant's claim for recognition as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18. As the evidence is not in equipoise, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs