Citation Nr: 18146524 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-15 681 DATE: October 31, 2018 ORDER Entitlement to a finding of permanent incapacity for self-support is granted. FINDING OF FACT The appellant suffers from mental and developmental deficiencies such that he was rendered permanently incapable of self-support prior to reaching the age of 18. CONCLUSION OF LAW The criteria for entitlement to a finding of permanent incapacity for self-support prior to age 18 have been met. 38 U.S.C.A § 101; 38 C.F.R. §§ 3.57; 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1973 to November 1976 with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The Veteran died in September 1994. The appellant is the Veteran’s surviving son. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2013 and January 2014 rating decisions issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. Jurisdiction over the appeal presently rests with the VA Regional Office (RO) in Houston, Texas. In June 2017, the appellant and his stepfather testified before the undersigned Veterans Law Judge at a hearing held at the RO. A transcript of that hearing is of record. As a matter of background, this matter previously came before the Board in September 2017, at which time it was remanded for further development. 1. Entitlement to a finding of permanent incapacity for self-support The appellant seeks a finding of permanent incapacity for self-support prior to age 18 for purposes of entitlement to VA benefits. The Board finds that the claim has merit. 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 September [redacted], 1993. He turned 18 on September [redacted], 2011. Therefore, the Board must determine whether the appellant became permanently incapable of self-support prior to that date. The record reflects that the appellant has had multiple diagnoses pertaining his mental and intellectual abilities, with a primary diagnosis of mental retardation. In July 2009, the Social Security Administration (SSA) made a formal determination of disability due to mental retardation, effective July 9, 2009, the date of filing, and prior to the appellant reaching the age of 18. That determination was based upon a formal finding by a psychologist (Ph.D.) who found significantly sub-average general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports the onset of impairments before age 22 (in this case, before age 17) with a valid verbal, performance, or full-scale IQ of 59 or less. In support of its determination, the SSA attached reports of assessment data from the appellant’s school district where he was presently enrolled. That report found, among other things, a full-scale IQ of 53, reading comprehension skills ending at the 1st grade level; math skills ending at the 2nd grade level; and written expression at the beginning 1st grade level. The appellant was in the 9th grade at that time. Based upon the assessment results, the appellant continued to meet the eligibility criteria as a student with mental retardation. He was provided with many accommodations and modifications to allow him to continue with school, including special education classes and some inclusion support for classes in the general education setting when available. A report of psychological evaluation conducted in August 2012 (after his 18th birthday) showed significant limitations in all academic areas, with standard scores comparable to IQ measures and range from the borderline to significantly subaverage level. He showed significant limitation in word recognition, reading comprehension, expressive writing skills, and math skills. He had, at best, a first-grade reading comprehension level. The examiner found that he had academic and cognitive limitations that would restrict him in a variety of training and employment opportunities. With his limitations he would have a very difficult time in any type of vocational program; specifically, he would have a difficult time when pressured for speed or managing any type of a quota. The examiner suggested he be provided with counseling throughout his rehabilitation program to assist with achieving realistic v ocational objectives, but did not state what those objectives could realistically include. Although this report was created after his 18th birthday, it does document ongoing mental health issues which rendered the appellant incapable of self-support. Also of record is a June 2017 letter from the appellant’s treating psychologist who reported functioning in the extremely low range of intellectual functioning with a full-scale IQ of 46. The psychologist reported a guarded prognosis with demonstrated intellectual impairments that are dated from birth. Special education placement during his entire school career has resulted in some learning, but not enough to allow him to use reading or writing skills effectively. He was found able to work acceptably on rote tasks that are well practiced only. In his hearing before the undersigned, the appellant participated minimally to the best of his ability. His stepfather provided most of the testimony. In that hearing it was established that the appellant had worked for two summers as a bagger in the commissary at the local military facility. The appellant worked part time, and quit after two summers due to teasing from others in the work place. His stepfather testified that during his employment over an entire summer he was generally able to make about $600 total. It was also testified that since that time the appellant had not been able to secure any type of employment, be it gainful or not. In light of the above evidence, the RO sought a review of the evidence and a medical opinion on the appellant’s capacity for self-support. The examiner conducted a thorough review of the evidence and concluded that it is less likely than not that the appellant was permanently incapacitated by a condition which had its onset before 18 years of age. Specifically, the examiner noted that the appellant’s mother reported in 2009 that he continued to show improvement; that his SSA benefits were not considered permanent; and that he had prior employment. The examiner also noted that the appellant was not physically limited by his condition; had been found capable of completing routine, repetitive tasks; and had been reported by his mother to need ongoing treatment for learning disabilities, but not mental retardation. While certainly thorough, the Board finds this opinion to be less than persuasive. This opinion was rendered based exclusively on a review of the evidence and did not include an actual examination of the appellant, unlike the other medical evidence which was based upon first-hand encounters with the appellant. There also appears to be some misinterpretation of the evidence by the examiner. For example, the examiner stated that the appellant was not present at his hearing before the undersigned, when in fact he was present, and participated to the maximum level possible. The examiner also relies on statements by the appellant’s mother that he showed improvement and was not being treated for mental retardation, but the appellant’s mother is not a medical professional capable of providing expert opinion on the appellant’s mental capabilities and progress or an actual changed diagnosis for his disability. The Board further notes that, although the SSA determination did indicate that the grant was not permanent if the appellant was later found to have improved, there is no indication that the determination was ever overturned and the grant of SSA disability benefits ever revoked. Thus, reliance on that finding by SSA bears little weight. Finally, to the extent that the examiner noted prior employment, that employment was part-time and seasonal in nature and did not provide sufficient income for his reasonable support. Ultimately, the question is not whether the appellant can, in fact, complete some occupation, but whether he can maintain an occupation that provides reasonable self-support given his limitations. To date, the Board finds that this has not been shown. As noted above, a finding of permanent incapacity for self-support is a fact-based question which relies upon review of competent evidence of record in the individual case. In this particular case, given the SSA determination in conjunction with his medical and educational records prior to his turning 18 and thereafter, the Board is satisfied that the evidence shows the appellant suffers from mental and developmental disabilities which were present from birth and clearly rendered him incapable of self-support prior to reaching the age of 18. Accordingly, a finding of permanent incapacity for self-support is granted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel