Citation Nr: 19155705 Decision Date: 07/18/19 Archive Date: 07/18/19 DOCKET NO. 15-19 479 DATE: July 18, 2019 ORDER Entitlement to recognition of N.H. as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years for purposes of receiving VA benefits is granted. Service connection for ischemic heart disease, diagnosed as atherosclerotic heart disease, is granted. REMANDED Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure is remanded. Entitlement to service connection for left upper extremity neuropathy, to include as secondary to service-connected diabetes, is remanded. Entitlement to service connection for right upper extremity neuropathy, to include as secondary to service-connected diabetes, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. At the time of his 18th birthday, N.F. had physical defects rendering him permanently incapable of self-support. 2. The Veteran served in the Republic of Vietnam and had a diagnosis of atherosclerotic heart disease. CONCLUSIONS OF LAW 1. The criteria for recognition of N.F. as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 are met. 38 U.S.C. § 101(4); 38 C.F.R. §§ 3.57, 3.356. 2. The criteria for entitlement to service connection for atherosclerotic heart disease are met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to May 1970, to include service in the Republic of Vietnam. He died in May 2011. The appellant is his surviving spouse, has been substituted as the Veteran for purposes of processing the appeal to completion. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, the appellant testified before a decision review officer (DRO). In October 2018, the appellant and her son testified before the undersigned Veterans Law Judge. The appellant’s claims of entitlement to service connection for PTSD and COPD have been recharacterized, to include consideration of all psychiatric and respiratory disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Whether the Veteran’s son, N.F., is entitled to recognition as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years is granted. The appellant seeks dependency benefits for her son, N.F., born in July 1991, asserting that N.F. was permanently incapable of self-support prior to attaining the age of 18. The term “child” for purposes of Title 38 of the United States Code is specifically defined. For purposes of determining eligibility as a claimant under Title 38, a child must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.356. Rating determinations regarding helpless child status are 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 rating criteria applicable to disabled service members are not controlling. 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. Id. The principal factors for consideration under 38 C.F.R. §3.356 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. It has been held that in cases such as this, the “focus of analysis must be on the claimant’s condition at the time of his or her 18th birthday.” Dobson v. Brown, 4 Vet. App. 443, 445 (1993). In other words, for purposes of initially establishing helpless child status, the appellant’s condition subsequent to his or her eighteenth birthday is not for consideration. If the individual in question is shown to be capable of self-support at 18, VA is required to proceed no further. Id. However, if a finding is made that an individual was permanently incapable of self-support as of his or her eighteenth birthday, then evidence of that person’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 after the age of 18. Id. The appellant testified that since birth N.F. has had no nerve connection in the left eye, impacting his ability to turn his eye outward, as well as essential tremors that are similar to Parkinson’s disease. See October 2018 Board hearing at 15. She testified that he lives at home; works four hours a day, four days a week earning minimum wage; and has been turned down for employment opportunities because his tremors impact his legs, arms, hands, and vocal cords. Id. Additionally, she reported that his tremors have progressively worsened and that although he is able to perform activities of daily living independently, he does so very slowly or with the help of others. Id.; see also May 2012 written statement. The Board finds that N.F. is permanently incapable of self-support through his own efforts by reason of physical defects, and that he has been that way prior to his attaining the age of 18. A review of medical evidence reveals that N.F. has essential tremors and Dwayne’s Syndrome of the left eye. A May 1996 treatment note indicates that N.F.’s tremors impact his fine motor skills and may interfere with activities in school. An April 2007 treatment record notes N.F.’s complaint that his tremors cause him to drop items and impacts his ability to write. N.F.’s high school records indicate that he received special education services due to his fine motor difficulties, requiring him to need additional time to complete assignments. In a September 2012 private neurological note, Dr. A.P. opined that disability compensation would be appropriate, as N.F.’s tremors will progressively worsen over time. In fact, the appellant testified that his tremors have worsened over time and may require surgery. The Board finds that N.F.’s part-time employment to be casual and does not rebut permanent incapability of self-support otherwise established. Further, there has not been any showing of improvement sufficient to render N.F. capable of self-support after he turned 18 years of age. Based on the evidence of record, the Board finds that N.F. was permanently incapable of self-support by reason of physical defect and that this condition was present prior to his eighteenth birthday. See 38 C.F.R. § 3.356(a). The Board finds the testimony of the appellant regarding N.F.’s history to be both credible and competent. There is no medical opinion to the contrary of record. Consequently, the Board concludes that N.F. was permanently incapable of self-support prior to reaching the age of 18. 2. Entitlement to service connection for a heart disability, to include as due to herbicide exposure is granted. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period starting on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases shall be service connected if the Veteran was exposed to an herbicide agent during service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Ischemic heart disease is listed under 38 C.F.R. § 3.309(e) as a disability being presumptively related to herbicide exposure. 75 Fed. Reg. 53,202, 53,216 (Aug. 31, 2010). Ischemic heart disease is defined as “acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina.” 38 C.F.R. § 3.309(e). The Board notes that a final rating decision from September 2009, as part of granting service connection for diabetes mellitus type II, found that the Veteran was exposed to herbicide agents while in service. As VA has already rendered a final finding that the Veteran was exposed to herbicide agents during his service, this element of service connection is satisfied. In March 2011, Dr. R.M. diagnosed atherosclerotic heart disease following a CT scan that revealed coronary arterial calcification; therefore, the Veteran had a diagnosis of ischemic heart disease under 38 C.F.R. § 3.309(e). As noted above, VA has determined that the Veteran served in Vietnam during the Vietnam era. Therefore, it is presumed that the Veteran was exposed to herbicide agents during service. As such, service connection for ischemic heart disease, including atherosclerotic heart disease, is warranted on a presumptive basis. REASONS FOR REMAND 3. Entitlement to service connection for a respiratory disorder, to include COPD, to include as due to herbicide exposure is remanded. During the Veteran’s life, he asserted that his lung disorder, to include COPD, was related to his in-service exposure to herbicides. A review of the record shows diagnoses of emphysema, cor-pulmonale, COPD, and pulmonary hypertension. The Veteran was not afforded a VA examination in regard to his service connection claim. Thus, upon remand, the Agency of Original Jurisdiction (AOJ) should obtain a retrospective medical opinion, to determine whether the Veteran’s respiratory disorders were related to service, to include his presumed exposure to herbicides, or were secondary to his service connected diabetes and/or ischemic heart disease. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for left upper extremity neuropathy, to include as secondary to service-connected diabetes is remanded. 5. Entitlement to service connection for right upper extremity neuropathy, to include as secondary to service-connected diabetes is remanded. In November 2010, the Veteran reported pain up his arms that was caused or aggravated by his service-connected diabetes. The appellant testified that the Veteran was diagnosed with bilateral upper extremity neuropathy in the last year of his life. See October 2018 Board Hearing at 9. Further, the appellant and her son testified that the Veteran complained of stiffness in his neck and that his hands would cramp, impacting his ability to extend his hands. Id. at 9-11. It is not clear from the record, whether the Veteran had a diagnosis of bilateral upper extremity neuropathy. However, the Board notes that pain that results in functional impairment may be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As such, a remand is required to obtain a retrospective opinion to determine the functional impairment caused by the Veteran’s bilateral upper extremity pain, whether it was related to his presumed exposure to herbicide agents, or as secondary to his service-connected diabetes. McLendon, supra. 6. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. The appellant asserts that the Veteran’s acquired psychiatric disorders were related to his service as a combat engineer in Vietnam. In May 2011, the Veteran submitted mostly illegible private treatment records, which include a diagnosis of schizophrenia. Private and VA treatment records include diagnoses of schizo-affective disorder and depression. In November 2010, the Veteran’s VA PTSD screening test was positive. The Board acknowledges the Veteran, who served as a combat engineer in Vietnam, likely experienced in-service stressors involving traumatic events. See May 2011 VA Form 21-0781, Statement in Support of Claim for PTSD. On remand, a retrospective VA medical opinion regarding the etiology and diagnosis of any acquired psychiatric disorder from December 2010 to May 2011 is required. See McLendon v. Nicholson, 20 Vet App. 79 (2006); Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). Additionally, during his life, the Veteran reported that he saw a private psychiatrist on a regular basis. See November 2010 VA treatment record. He further reported that he was hospitalized at Oakwood Hospital in 1985. Id. On remand, these private treatment records should be associated with the record. The matters are REMANDED for the following actions: 1. With any necessary assistance from the appellant, obtain all outstanding private treatment records, to include from Oakwood Hospital (1985), Genesys Hospital (1999), Dr. Jain, and Dr. Fox. If any records are unavailable, notify the appellant pursuant to 38 C.F.R. § 3.159(e). 2. Then obtain a retrospective opinion as to the etiology of the Veteran’s respiratory disorders. After a review of the claims file, the examiner is requested to provide a specific opinion as to: (a) Identify all respiratory disorders present during the appeal period from December 2010 to May 2011, to include emphysema, cor-pulmonale, COPD, and pulmonary hypertension. (b) For each respiratory disorder identified, please opine as to whether it is at least as likely as not (50 percent probability or greater) that the disorder had its onset in service or was otherwise related to service, to include the Veteran’s presumed exposure to herbicide agents therein. The examiner should also discuss the Veteran’s history of smoking. Please do not rely solely on the lack of availability of presumptive service connection for COPD based on herbicide agent exposure to support a negative opinion, as that will be inadequate for rating purposes. (c) For each respiratory disorder identified, please opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s respiratory disorder was (1) caused or (2) aggravated (worsened beyond natural progression) by his service-connected diabetes and/or ischemic heart disease. In addressing secondary service connection, please note that the primary disability (diabetes and ischemic heart disease) need not be diagnosed or service-connected at the time the secondary condition (respiratory disorder) is incurred to establish secondary service connection, and reliance on this fact will render any secondary opinion inadequate. A complete rationale must be provided for all opinions expressed. If unable to opine without resorting to speculation, please provide a rationale for that conclusion. 3. Then obtain a retrospective opinion as to the etiology of any peripheral neuropathy of the bilateral upper extremity. After a review of the claims file, the examiner is requested to provide a specific opinion as to: (a) Identify all bilateral upper extremity disorders. If no diagnosis is rendered and only pain and/or numbness is identified, the examiner must indicate whether the Veteran’s reported pain and/or numbness caused any functional impairment. See May 2009 VA examination report; November 2010 statement; October 2018 Board Hearing 9-11. (b) The examiner should opine whether the Veteran had early onset peripheral neuropathy, and if so, was it manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicide agents. (c) For each disability diagnosed, or any functional impairment identified, please opine whether it is at least as likely as not (a 50 percent or greater probability) that such disability/impairment was incurred in, or is otherwise related to the Veteran’s active service, to include his presumed exposure to herbicide agents therein. Please do not rely solely on negative service treatment records and/or the fact that presumptive service connection is not available for the condition in question. (d) For each disability diagnosed, or any functional impairment identified, please opine whether it is at least as likely as not (50 percent probability or greater) that such disorder is (1) caused or (2) aggravated (worsened beyond natural progression) by his service-connected diabetes and/or ischemic heart disease. In addressing secondary service connection, please note that the primary disability (diabetes and ischemic heart disease) need not be diagnosed or service-connected at the time the secondary condition (peripheral neuropathy) is incurred to establish secondary service connection, and reliance on this fact will render any secondary opinion inadequate. In responding to these questions, the examiner must acknowledge and discuss the competent lay statements regarding the Veteran’s bilateral upper extremity symptoms offered by the appellant at the October 2018 Board hearing and the Veteran in his written statements. A complete rationale must be provided for all opinions expressed. If unable to opine without resorting to speculation, please provide a rationale for that conclusion. 4. Then obtain a retrospective opinion as to the etiology of the Veteran’s acquired psychiatric disorders. After a review of the claims file, the examiner is requested to provide a specific opinion as to: (a) Identify all psychiatric disorders present during the appeal period from December 2010 to May 2011, to include schizophrenia and depression. (b) If a diagnosis of PTSD is warranted, specify whether that diagnosis was related to the Veteran’s fear of hostile military or terrorist activity, to include combat service in Vietnam. See May 2011 VA Form 21-0781. (c) If a diagnosis of PTSD is warranted and is not due to a fear of hostile military or terrorist activity, specify the claimed in-service stressor(s) upon which that diagnosis is based. (d) For each psychiatric disorder other than PTSD identified, please opine as to whether it is at least as likely as not (50 percent probability or greater) that such disorder had its onset in or is otherwise related to the circumstances of the Veteran’s service, to include his combat service in Vietnam. (e) If the criteria for a diagnosis of a psychotic disorder (brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, or substance/medication-induced psychotic disorder) were met, please state, to the best of your ability, whether the prodromal period for such disorder as likely as not had its onset during the Veteran’s period of active service or within one year of separation from service. In responding to these questions, the examiner must acknowledge and discuss the competent lay statements regarding the Veteran’s psychiatric symptoms offered by the appellant at the October 2018 Board hearing and the Veteran in his written statements. A complete rationale must be provided for all opinions expressed. If unable to opine without resorting to speculation, please provide a rationale for that conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Forde, Counsel