Citation Nr: 20021646 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-35 183A DATE: March 26, 2020 ORDER New and material evidence sufficient to reopen a claim for entitlement to recognition of S.R. as the “helpless child” of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 has been received, and the petition to reopen this claim is granted. REMANDED Entitlement to recognition of S.R. as the “helpless child” of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is remanded. FINDINGS OF FACT 1. In a January 2010 rating decision, the Regional Office denied entitlement to recognition of S.R. as the “helpless child” of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18; the Veteran did not appeal the decision or submit new and material evidence within a year. 2. Evidence received after the January 2010 rating decision that denied entitlement to recognition of S.R. as the “helpless child” of the Veteran became final relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2010 rating decision that denied entitlement to recognition of S.R. as the “helpless child” of the Veteran was not appealed and is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2019). 2. New and material evidence has been received to reopen the claim of entitlement to recognition of S.R. as the “helpless child” of the Veteran. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from July 1969 to July 1971. S.R. is his biological adult daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). Request to Reopen As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen the previously denied claim for recognition of S.R. as his “helpless child.” Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for the Federal Circuit has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). In deciding whether new and material evidence has been received, the Board looks to evidence submitted since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When deciding as to whether received evidence meets the definition of new and material evidence, the Board should be cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. 1. Finality As mentioned above, the Veteran’s claim for recognition of S.R. as his “helpless child” was denied in a January 2010 rating decision. That decision determined that S.R. was not permanently incapable of self-support prior to attaining the age of 18 and that she was independently capable of performing activities of daily living and had steady employment in the past. The Veteran was notified of the January 2010 decision in correspondence sent later that month. The record does not include a notice of disagreement to that decision received within a year of that notice. Similarly, there is simply no pertinent evidence relating to S.R.’s functioning that was received within a year of that notice. As such, the Board finds that the January 2010 decision became final. 2. New and Material Evidence Although S.R. was determined in January 2010 to not satisfy the criteria of a “helpless child” in part at least on her ability to perform independent activities of daily living, the Veteran and his spouse now contend that she has not been able to do so. In the May 2014 notice of disagreement, they stated that she was incapable of performing those activities, that steady employment was not demonstrated prior to or after age 18, and that she required her parents to be available at all times. This evidence is “new” because it was not previously considered at the time of the January 2010 denial and it is “material” because it relates to a previously unestablished fact and raises a reasonable possibility of substantiating the Veteran’s claim. As such, the Board finds that the criteria to reopen the claim for recognition of S.R. as the Veteran’s “helpless child” and the petition must be granted. The claim is granted to this extent only. REASONS FOR REMAND As an initial matter, the Board notes that the claims file does not include a substantial amount of pertinent evidence relating to S.R.’s capacity for self-support around the time of her 18th birthday and in the years that have followed. The record includes some inconsistencies with respect to S.R.’s high school education. At a February 2004 vocational evaluation, it was reported that she attended Wellington High School and obtained a regular high school diploma. No reports of substantial educational services were reported at that time, despite the extensive interview regarding S.R.’s educational background. In contrast, at the September 2019 Board hearing, the Veteran stated that S.R. had been put in special education classes in her final two years of high school, and the representative contended that S.R. had only graduated under Florida’s Sunshine Law. It does not appear that VA has attempted to obtain these records. In “helpless child” cases, “focus of analysis must be on the [child’s] condition at the time of his or her 18th birthday.” Dobson v. Brown, 4 Vet. App. 443, 445 (1993). As such, a remand is necessary to make reasonable efforts to obtain S.R.’s high school records, to include any records relating to special education services. To that end, the Board notes that a remand is also required to obtain similar records from S.R.’s post-high school education. Although treatment records from November 2013 indicate she had been doing well in school, a November 2012 neurology treatment note suggests her treating physician had written a letter so that she could receive additional accommodations at school. The Board also observes that, in addition to the February 2004 vocational evaluation report cited above, the claims file indicates a similar evaluation occurred in July 2005 at Palm Beach Habilitation Center. Unfortunately, that report appears to have been cut off, and it lacks the full recommendation portion of the report in which the evaluator likely provided an opinion regarding S.R.’s vocational prospects. The report is of record through page 10, but ends shortly after the beginning of the recommendation section. A remand is necessary to obtain these full records. The matters are REMANDED for the following action: 1. With any necessary authorization from S.R., ask the Veteran to complete a VA Form 21-4142 for Wellington High School and Indian River State College to obtain any and all records held by those institutions regarding any accommodations, special education services, or disability services that S.R. was provided. Make two requests for the authorized records from each school, unless it is clear after the first request that a second request would be futile. 2. With any necessary authorization from S.R., ask the Veteran to complete a VA Form 21-4142 for Palm Beach Habilitation Center to obtain all vocational records for S.R. held by that facility. Make two requests for the authorized records from each school, unless it is clear after the first request that a second request would be futile. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Whitelaw, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.