Citation Nr: 20031732 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 17-61 845 DATE: May 6, 2020 REMANDED Entitlement to recognition of the Veteran’s son as his helpless child, on the basis of permanent incapacity for self-support prior to attaining the age of 18, is remanded. Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1943 to July 1946. The Veteran died in August 2016 and the appellant is the fiduciary and guardian of the Veteran’s adult son, R.G. (initials used to protect privacy). The appellant contends that R.G. is entitled to helpless child benefits on the basis of a permanent incapacity for self-support prior to attaining the age of 18. In support of this claim, the appellant has submitted statements and medical records noting that R.G. has mental retardation due to cerebral anoxia at birth. The appellant specifically maintains that R.G. was disabled before the age of 18.   The evidence of record indicates that R.G. was born in January 1953 and that he attained the age of 18 in January 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2019 decision, the Board denied the issue of entitlement to recognition of the Veteran’s son as his helpless child. In that decision, the Board also found that while the RO had also denied a claim for entitlement to service connection for the cause of the Veteran’s death, the Board did not have jurisdiction over the issue because the appellant had not submitted a notice of disagreement or substantive appeal as to that issue. The appellant then appealed the April 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 order, the Court vacated the April 2019 Board decision and granted a joint motion for remand (Joint Motion), which included remand of the appellant’s claim for service connection of the Veteran’s cause of death, in order for the Board to comply with the terms of 38 C.F.R. § 20.104(c). A letter was then sent to the appellant in December 2019 in which she was given 90 days from the date of the letter or until the date of the Board’s new decision, whichever came first, to submit additional argument or evidence in support of the appeal prior to the Board’s readjudication. The appellant elected to remand the case back to the AOJ for review of the additional evidence that she submitted in January 2020. Upon review, the Board finds that a remand is needed to comply with the Joint Motion, as well as the appellant’s wishes.   Review of the claims file shows that R.G. has been diagnosed with mental retardation and paranoid schizophrenia by his private family doctor, Dr. R.B. (initials used to protect privacy). A September 2004 psychiatric evaluation diagnosed R.G. with mild mental retardation and mild anxiety. The assessment notes that he attended “special classes” while in school. The New York State Education Department, Office of Vocational Rehabilitation issued a certificate dated October 1979, noting that R.G. experienced mental retardation and emotional disabilities. There appears to be differing diagnoses of record and the Board finds that it is unclear what the extent of R.G.’s disability was while under the age of 18. As such, the Board finds that a remand is necessary for a VA examination to assist in determining if R.G. became permanently incapable of self-support by reason of a mental or physical disability prior to attaining the age of 18. To that end, the AOJ should also attempt to obtain any education records for R.G. available through his elementary/middle/high schools or school district(s). The evidence of record also shows that R.G. has been receiving Social Security Administration (SSA) benefits. As such records may be relevant to the appellant’s claim, an attempt should be made to obtain those records. Additionally, a remand is needed with regard to the appellant’s claim for entitlement to service connection for the Veteran’s cause of death, in order to comply with the Joint Motion. Specifically, the parties agreed that when the Board raises a question as to a jurisdictional defect on its own initiative, all parties and their representative or representatives must be provided notice as to the potential jurisdictional defect and allowed a period of 60 days following the date of mailing of the notice to present argument or additional evidence concerning the jurisdictional issue. 38 C.F.R. § 20.104 (c). As such, and as this case is already being remanded, the AOJ should send such notice to all parties. The notice letter must afford the opportunity to request a hearing to present oral argument on the jurisdictional defect. Accordingly, the case is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that R.G. and/or the appellant provide the names and addresses of any and all medical providers who treated R.G. for his disorder(s) prior to January 1971. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 2. The AOJ should send a notice letter to all parties and their representative or representatives as to the potential jurisdictional defect issue regarding the claim for entitlement to service connection for the Veteran’s cause of death and allow a period of 60 days following the date of mailing of the notice to present argument or additional evidence concerning the jurisdictional issue. The notice letter must afford the opportunity to request a hearing to present oral argument on the jurisdictional defect 3. The AOJ should attempt to obtain any and all records from R.G.’s elementary/middle/high school(s) and/or school district(s).   4. The AOJ should request a copy of any SSA decision rendered as to R.G. and the records upon which the decision(s) was based and associate them with the claims file. If the search for such records has negative results, the claims file should be properly documented as to the unavailability of those records. 5. After the above development has been completed, R.G. should be afforded an appropriate VA examination as to his claim for entitlement to helpless child benefits on the basis of a child’s permanent incapacity for self-support prior to attaining the age of 18. Thereafter, the examiner must opine as to whether it is at least as likely as not that R.G. became permanently incapable of self-support by reason of a mental or physical condition prior to attaining 18 years of age. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. L. MCCABE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Rideout-Davidson, 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.