Citation Nr: 18147734 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 16-24 346 DATE: November 7, 2018 REMANDED Entitlement to recognition of the appellant as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to the age of 18 is remanded. REASONS FOR REMAND 1. Entitlement to recognition of the appellant as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to the age of 18 is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to recognition of the appellant as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to the age of 18, as no VA examiner has offered an opinion on the matter. 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. 38 C.F.R. § 3.356. On her VA-Form 9, the appellant also requested a list of Veterans Service Organizations to assist her with her claim. The RO noted in a subsequent letter that she should refer to the phonebook; however, given her mental state, she should be provided with information on representation including by available Veterans Service Organizations. The matter is REMANDED for the following action: 1. Send the appellant information on representation to include information regarding Veterans Service Organizations that are available to assist her with her claim. 2. Then, arrange for a review of the evidence of record by an appropriate expert to obtain an opinion as to whether, prior to or upon reaching 18 years of age, the appellant became permanently incapable of self-support. The focus of analysis shall be on the appellant’s conditions at the time of her 18th birthday. This may require having the appellant examined, but this is left to the designee’s discretion of whether this is necessary. All findings shall be reported in detail. Relevant evidence to be considered includes but is not limited to the following: (a) May 20, 1992 psychological evaluation from Dr. Marcus, as part of SSA records, noting the appellant was never fully functional since age 16; and May 18, 1992 psychiatric record from Maimonides Medical Center, that she had problems since she was 17; (b) SSA records noting on her own report that she worked in retail from 1984 to 1989 and at the post office from 1987 to 1988; (c) SSA records noting her mother’s statement that the appellant was never really able to sustain work; (d) SSA records noting psychiatric treatment noted at the age of 16 After reviewing the evidence, the examiner must opine whether it is at least as likely as not (probability of 50 percent) that the appellant was permanently incapable of self-support as of her 18th birthday in May 1978. In answering the above, the examiner is asked to consider: (i) Whether a child is earning his or her own support. Holding gainful employment is prima facie evidence that the child 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. (ii) 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 her condition was such that 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. (iii) 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 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. (iv) 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 provider must support the opinion with a complete rationale. In the opinion, the examiner should address the SSA determination, lay statements, and the appellant’s educational background. If an opinion cannot be provided, the provider must explain why this is so. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah B. Richmond