Citation Nr: 18145082 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-35 619A DATE: October 26, 2018 REMANDED Entitlement to a finding of permanent incapacity for self-support prior to age 18 for the appellant is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1963 to August 1974, and from November 1974 to November 1983. The Veteran died in October 2011. The appellant is the Veteran’s surviving son. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction over the appeal presently rests with the Pension Management Center (PMC) in Philadelphia. 1. Entitlement to a finding of permanent incapacity for self-support prior to age 18 for the appellant is remanded. Inasmuch as the Board regrets further delay in the adjudication of this claim, a remand is necessary. The appellant seeks a finding of permanent incapacity for self-support prior to age 18 for purposes of entitlement to VA survivor benefits. Under VA law, a “child” is defined as an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran’s household at the time of the Veteran’s death, or an illegitimate child; and (i) who is under the age of 18 years; or (ii) who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) who, after reaching the age of 18 years or until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs. 38 U.S.C.A § 101(4)(A); 38 C.F.R. § 3.57(a). The question of permanent incapacity for self-support is one of fact based upon a review of competent evidence of record in the individual case. 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. 38 C.F.R. § 3.356(b)(1). However, 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). The appellant was born on January [redacted], 1977. He turned 18 on January [redacted], 1995. Therefore, the Board must determine whether he became permanently incapable of self-support prior to that date. The record reflects that the appellant has multiple diagnoses pertaining to his physical, intellectual, and psychological abilities. Although there is no primary diagnosis affecting his intellectual abilities, evidence does suggest that he suffered from symptoms affecting his intellectual development as early as 1984, requiring him to be placed in special education classes during his school years and preventing him from keeping up with children of a similar age. There is also evidence submitted that he attempted employment on multiple occasions, but has been unsuccessful in maintaining permanent employment due to various factors affecting his intellectual abilities. Despite the above evidence, the Board finds that there is insufficient evidence of record to fully adjudicate whether the appellant was incapable of self-support prior to his 18th birthday. To date he has not been afforded a comprehensive psychological and physical examination which assesses his medical history and provides an opinion as to whether he is presently incapable of self-support, and whether that incapability has lasted since January 1995. As such, a remand is necessary so that the appellant may be afforded an examination which assesses his mental and physical disabilities and provides an opinion on his capacity for self-support. The matter is REMANDED for the following action: 1. Invite the appellant to submit any additional evidence in support of his claim. Particularly, the appellant should be requested to provide any additional available medical or lay evidence pertaining to his physical and intellectual disabilities prior to January 13, 1995. Such evidence may include statements from parties who knew the appellant prior to his 18th birthday, school records, formal findings of disability from the Social Security Administration, or medical treatment records, if available. 2. Schedule the appellant for an examination by an appropriate clinician to determine the nature and etiology of any psychiatric, intellectual, or physical disabilities which may have rendered him incapable of self-support. The examiner should take a detailed history from the appellant and must opine whether it is at least as likely as not that he became permanently incapable of self-support prior to January 13, 1995. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel