Citation Nr: 20043370 Decision Date: 06/26/20 Archive Date: 06/26/20 DOCKET NO. 15-27 311A DATE: June 26, 2020 ORDER Recognition of A.E. as a helpless child based on a permanent incapacity for self-support before attaining 18 years of age is denied. FINDING OF FACT The weight of the probative evidence does not support a finding that A.E., son of the Veteran, was permanently incapable of self-support by reason of mental or physical condition prior to attaining the age of 18 years. CONCLUSION OF LAW The criteria to establish recognition of the Veteran’s son, A.E., as a helpless child for VA compensation have not been met. 38 U.S.C. § 101(4) (2018); 38 C.F.R. §§ 3.57, 3.159, 3.356 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active naval service from October 1948 to September 1952, from December 1961 to May 1962, and from July 1965 to July 1967. He died in July 2011. The appellant is the surviving spouse. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In an August 2018 decision, the Board denied the appellant’s claim for recognition of A.E. as a helpless child. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2019, pursuant to a Joint Motion for Remand (Joint Motion), the Court vacated the Board’s decision. In July 2019 and March 2020, the Board remanded the claim for additional development. Helpless Child Status The appellant seeks recognition for the Veteran’s son, A.E., as a helpless child on the basis of permanent incapacity for self-support prior to the age of 18. In order to establish such entitlement, it must be shown that the child was permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. 38 C.F.R. § 3.356(a). 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 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. A “child” for VA benefits purposes 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. The focus of analysis is on the child’s condition at the time of his 18th birthday. It is that condition which determines whether entitlement to the status of “child” should be granted. Dobson v. Brown, 4 Vet. App. 443 (1993). Turning to the facts of the case, the evidence of record shows that A.E. was born in July 1971 and turned 18 in July 1989. Upon review of the record, the evidence does not demonstrate that A.E. was permanently incapable of self-support by July 1989, when he reached the age of 18. The evidence of record shows that A.E. attended and graduated high school, achieving a 12th grade education. Furthermore, records reflect employment after the age of 18 which included working in the kitchen at a hospital. See Correspondence received March 2013. Indeed, the Board observes private treatment records dated November 2011 and August 2012 reflecting diagnoses of bipolar disorder, mild mental retardation, and borderline personality disorder. The record also reflects appellant’s petition for guardianship and her appointment as A.E.’s guardian as of May 2011. However, those records do not pertain to A.E.’s disability picture prior to attaining 18 years of age. Instead, the psychiatric treatment records reflect his mental condition at age 40, and guardianship documentation shows his living situation at age 27. Moreover, there is no contemporaneous medical evidence that documents that A.E., by the age of 18 in 1989, was permanently incapable of self-support. In the Joint Motion, the parties agreed that the Board erred in not considering whether a retrospective medical opinion was warranted to properly assess whether A.E. was a helpless child at the time of his 18th birthday. In July 2019, the Board remanded the claim to obtain a retrospective medical opinion. In November 2019, a VA examiner reviewed the claims file and stated that he was unable to provide an opinion without resorting to speculation. He stated that the circumstances were beyond his scope or ability to make an accurate assessment based on the available records. To render an opinion, he stated that he would require complete medical records showing both the appellant’s physical and mental capabilities as of his 18th birthday as well as his educational records, earning history/job status from his 18th birthday to the present, and psychiatric records and results of psychometric instruments administered prior to the age of 18. In March 2020, the Board remanded the claim so that an attempt could be made to assist the appellant in obtaining records relevant to her claim. She had previously submitted a general release for medical provider information, VA Form 21-4142a; however, she failed to identify any providers and failed to sign the release. VA rejected the general release, but did not follow up with the appellant in an attempt to obtain a valid release. In addition, inquiry results from the Social Security Administration (SSA) indicated that A.E. had applied for disability benefits and that claim had been denied; however, those records had not been requested. Pursuant to the Board’s March 2020 remand, the Agency of Original Jurisdiction (AOJ) contacted SSA to obtain A.E.’s records and was notified that there were no medical records. In a March 2020 letter, the AOJ notified the appellant that it had requested records from SSA and asked that she submit copies of any records in her possession. The AOJ also notified her that the general release that she had submitted did not list any providers and did not contain her signature. She was provided another general release form and notified that she was being given another opportunity to submit a valid form so that VA could assist her in obtaining any outstanding relevant medical evidence to support her claim. In April 2020, the appellant submitted another general release, VA Form 21-4142a; however, she once again did not identify any providers and did not sign the form. Later that month, the AOJ notified her that the form was not valid and that SSA had indicated that it did not have any medical records for A.E. She did respond to the letter. In this case, the Board finds that the AOJ complied with its July 2019 and March 2020 remand directives and that VA has satisfied its duty to assist the appellant in this case. Although a retrospective medical opinion may have been helpful, the VA examiner indicated that he was unable to provide such an opinion without additional evidence. The appellant was provided an opportunity to submit that evidence and/or to submit a valid release so that VA could assist her in obtaining that evidence. She failed to do so. In this regard, the Board notes that the “duty to assist is not always a one-way street.” A claimant is expected to cooperate in the efforts to adjudicate the claim, and her failure to do so subjects her to the risk of an adverse adjudication based on an incomplete and underdeveloped record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board has also considered the lay statements of record including the appellant’s personal assertions and the statement from A.E.’s former principal that A.E. was enrolled in a special education program and graduated from high school. See Statement of T.A. of Scott City School. While they are competent to describe A.E.’s physical and mental symptoms, the determination as to whether he was permanently incapable of self-support by reason of mental or physical defect by age 18, under VA standards, is medical in nature and thus not capable of lay observation. In sum, the Board finds that the weight of the evidence of record is against the finding that A.E. became permanently incapable of self-support by reason of mental or physical defect before reaching the age of 18. (Continued on the next page)   Based on the foregoing discussion, the Board finds that the criteria have not been met to recognize the appellant’s son, A.E., as a helpless child on the basis of permanent incapacity for self-support prior to the age of 18. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim that doctrine is not applicable. 38 U.S.C. § 5107(b) (2018); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mishalanie 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.