Citation Nr: 18155569 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-58 727A DATE: December 4, 2018 REMANDED Entitlement to death pension benefits for the Veteran’s son, P. E. F., based on helpless child status, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1951 to May 1955. He died in September 2002 and the appellant is the Veteran's son. This case comes to the Board of Veterans' Appeals (the Board) on appeal of an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Center in Philadelphia, Pennsylvania. 1. Entitlement to death pension benefits for the Veteran’s son, P. E. F., based on helpless child status, is remanded. Although further delay is regrettable, the Board concludes that the appeal must be remanded for further procedural and evidentiary development in an effort to afford the appellant every opportunity to substantiate his appeal. There appears to be a disconnect between VA and the Veteran’s sister, who has been appointed to represent him in this matter, concerning what evidence is necessary to substantiate the appellant’s claim for benefits. In a January 2015 notice letter sent to the appellant, prior to the appointment of the Veteran’s sister as his representative, the Agency of Original Jurisdiction (AOJ) informed the appellant that he needed to submit “medical information confirming that you have been medically incapable of self-support prior to age 18,” in order to substantiate his appeal. In response, the Veteran’s sister has submitted statements from herself, two family members, and a private certified physician’s assistant, indicating that the appellant has been mentally impaired since birth. She also alleges that his condition has deteriorated, and that he now suffers from Alzheimer’s disease and dementia. While not doubting the validity and sincerity of these statements, the Board observes that this evidence is insufficient to resolve the crux of this case. Critically, the factors to be considered in rendering a determination of permanent incapacity for self-support are outline within 38 C.F.R. § 3.356 (2017), which was not provided to the appellant or his sister in the January 2015 notice letter. Although the provisions of these regulations were outlined in the August 2016 Statement of the Case (SOC), controlling laws are clear that such notice in a readjudication is insufficient to satisfy VA’s duty to notify appellants. In sum, it doesn’t appear that the appellant’s sister has been clearly informed that, to substantiate the appellant’s appeal, she must submit evidence showing the effects of his medically-documented physical and/or mental defects on his capacity for self-support, to include his educational and employment history, prior to and since his 18th birthday. In this respect, despite evidence that the appellant is in receipt of disability benefits from the Social Security Administration (SSA), there is no indication that the AOJ has sought the medical records upon which this determination was made. As the Board concludes that such evidence is pertinent to the appellant’s appeal, a remand to obtain these records is necessary. The matter is REMANDED for the following actions: 1. The AOJ must provide the appellant and his representative (sister) a notice letter that fully outlines the provisions of 38 C.F.R. § 3.356 (2017), outlining the factors to be considered in rendering a determination of permanent incapacity for self-support. 2. The AOJ must contact the appellant and his representative and request that they identify the names, addresses, and approximate dates of treatment for all of the non-VA medical care providers who have treated the appellant for his physical and/or mental defects impacting his capacity for self-support prior to and since his 18th birthday. After securing appropriate release(s) from the appellant (and/or his representative), the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile. The appellant and his representative must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 3. The AOJ should obtain and associate with the file any decision concerning the appellant’s disability benefits from the Social Security Administration (SSA), to include the treatment records on which that decision was based. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 4. Thereafter, the AOJ must undertake any additional development necessary to readjudicate the appeal, to include verifying the appellant’s complete educational and occupational history. 5. After undertaking any additional development deemed appropriate, and giving the appellant and his representative a full opportunity to supplement the record, readjudicate the appellant’s claim on appeal in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel