Citation Nr: 20047596 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 14-05 152 DATE: July 16, 2020 REMANDED Entitlement to recognition of Z. G. 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. REASONS FOR REMAND The Veteran had active service from June 1978 to June 1981. Z. G. is his son. This appeal comes before the Board of Veterans’ Appeals (Board) from a January 2011 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board previously remanded this matter in July 2016 for further development. The Board thereafter denied the appeal in November 2017. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Remand (JMR) in December 2018; thus, remanding this matter to the Board for action consistent with the terms of the JMR. In May 2016, the Veteran, his wife, and Z. G. testified at a Board videoconference hearing before a Veterans Law Judge (VLJ) other than the undersigned. That VLJ, however, is no longer employed at the Board, and in March 2019, the Veteran declined the opportunity to attend a new Board hearing. The Board remanded the claim on appeal to the agency of original jurisdiction (AOJ) for still further development in June 2019. In the June 2019 remand, the Board directed the AOJ to ask the Veteran and/or Z. G. to complete a VA Form 21-4142 to obtain potentially outstanding medical records from the Kellum Medical Group and any medical treatment provider that has treated Z. G. since he achieved the age of 18, to include the primary care provider referenced at a January 2017 VA examination. The Veteran submitted requested forms for Kellum Medical Group and for a Dr. Walker and a Dr. Jakubowski in August 2019. Notably, however, the Veteran appeared to mistakenly indicate on the forms that he was the patient, rather than Z. G. Thus, in September 2019, VA requested records from the Kellum Medical Group and Dr. Walker and Dr. Jakubowski pertaining to the Veteran, rather than Z. G. In response to the requests for the Veteran’s records, the medical practitioners responded that records for the Veteran were not found or had been destroyed. Given that records for the Veteran, rather than Z. G. were mistakenly identified and requested, additional remand is warranted to allow VA to make all reasonable efforts to obtain potentially relevant private treatment records. Cf. Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.) Also, in the July 2019 remand, the Board requested that Z. G. be afforded a new VA examination, also considering any newly obtained medical records, addressing whether it is at least as likely as not that Z. G. has been permanently incapable of self-support since before he attained the age of 18. While a new examination was completed in January 2020, the examination was conducted in absence of the additional requested medical records. Thus, if the requested medical records are obtained, an additional addendum opinion should be obtained to address any pertinent medical records obtained on remand. The matter is REMANDED for the following action: 1. After obtaining required authorization, request Z. G.’s treatment records from Kellum Medical Group and Dr. Walker and Dr. Jakubowski, who have reportedly treated Z. G. since he achieved the age of 18. Make two requests specifically for Z. G.’s records (not records for the Veteran), from any authorized facility, unless it is clear after the first request that further request would be futile. 2. If and only if additional medical records pertaining to Z. G. are obtained, obtain an addendum opinion from an appropriate examiner to determine the impact of any physical or mental disability on Z. G,’s permanent capacity for self-support, considering the newly obtained medical records. The examiner should review Z. G.’s medical, social, and occupational history, to include his daily activities at home and in the community. If the examiner determines that a new examination is necessary, such examination must be so arranged. After review of the record, and any additional examination, the examiner should provide a new opinion as to whether it is at least as likely as not that Z. G. has been permanently incapable of self-support since before he attained the age of 18. Michael L. Wilson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.