Citation Nr: 21000304 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-35 172 DATE: January 5, 2021 ORDER 1. New and material evidence sufficient to reopen a claim for entitlement to recognition of R.M. as a “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 such claim is granted. 2. Recognition of R.M. as the Veteran’s “helpless child” on the basis of permanent incapacity for self-support prior to attaining age 18 is granted. REMANDED 3. Entitlement to recognition of J.M. as a “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. A February 1990 rating decision the Veteran denied entitlement to recognition of R.M. as hiss “helpless child”; he did not appeal that decision. 2. Evidence received since the February 1990 decision became final relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. R.M. was the Veteran’s unmarried biological son. 4. Resolving all reasonable doubt in the Veteran’s favor, R.M. is shown to have become permanently incapable of self-support prior to attaining age 18. CONCLUSIONS OF LAW 1. A February 1990 rating decision that denied the Veteran entitlement to recognition of R.M. as his “helpless child” was not appealed and is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence to reopen the claim of entitlement to recognition of R.M. as the “helpless child” of the Veteran has been received. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for recognition of R.M. as a “helpless child” of the Veteran have been met. 38 U.S.C. §§ 101(4)(A), 5107; 38 C.F.R. §§ 3.57, 3.356 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from June 1964 to November 1965. R.M. is his adult son who passed away during the course of the instant appeal. J.M. is another of the Veteran’s adult sons. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 Department of Veterans Affairs (VA) rating decision. In March 2020 a hearing was held in March 2020 before the undersigned. At the hearing, the Veteran acknowledged that R.M. was deceased. Due to this death, the issue on appeal identified at the hearing was considered to only be an appeal regarding “helpless child” benefits for J.M. However, as the Veteran was potentially entitled to additional dependency compensation based on R.M.’s dependency from the time of the claim until R.M.’s death, that issue remained on appeal. In April and July 2020 VA sent the Veteran correspondence to clarify whether he wished to withdraw this claim or to attend an additional hearing addressing R.M.’s claimed dependency,. As he has not replied, it is assumed that he neither wishes to withdraw the claim for R.M. nor desires another hearing in the matter. Considering the Board’s decision in the matter herein, he is not prejudiced such assumption . Permanent incapacity for self-support for R.M. 1. Petition to reopen Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from the notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. § 3.160(d), 20.200, 20.201, 20.202, 20.302(a) (2018). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108. “New and material evidence” is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence received is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claim seeking recognition of R.M. as his “helpless child” was denied in February 1990 due to insufficient evidence that R.M. had become permanently incapable of supporting himself before he attained age 18. No pertinent evidence relating to this claim or notice of disagreement with the decision was received within a year of the notification of the denial. Therefore, it became final. Evidence received since then demonstrates that R.M.’s hearing difficulties arose significantly before his 18th birthday and also demonstrate that he had substantial difficulty with speech as well. For instance, a January 1998 audiological note confirmed that R.M. became deaf pre-lingually and that he communicated via sign language. The record also contains an April 2014 statement from R.M.’s treating physician expressing the opinion that R.M. was deaf and mute since birth and was totally disabled. This evidence, which is presumed to be credible, is new because it was not considered at the time of the prior final denial in February 1990 and is material because it relates to the previously unsubstantiated element of whether R.M. became incapable of self-support prior to attaining age 18. Therefore, the Board finds that new and material evidence has been received and that the petition to reopen the claim must be granted. 2. Entitlement to recognition of R.M. as the Veteran’s “helpless child” on the basis of permanent incapacity for self-support prior to attaining age 18 The Veteran seeks increased dependency compensation through recognition of R.M. as his “child” for VA’s purposes. Any veteran who is entitled to disability compensation, and whose disability is rated not less than 30 percent is entitled to additional compensation for dependents, including for children. See 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). VA only recognizes certain unmarried individuals as a “child” for these purposes. To be considered a veteran’s child, the individual in question must be unmarried and either must be 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). Where, as here, the child’s age exceeds age 23, the Board must consider what permanent effects the child’s physical or psychological conditions on his or her ability to support themselves before attaining the age of 18. See Dobson v. Brown, 4 Vet. App. 443, 445 (1993). In other words, for the purpose of initially establishing helpless child status, the claimant’s condition after the 18th birthday is not for consideration. If a finding is made that a claimant was permanently incapable of self-support as of the time of the 18th birthday, however, then evidence of the claimant’s subsequent condition becomes relevant for the second step of the analysis, that is, whether there was improvement sufficient to render the claimant capable of self-support. Id. If the claimant is shown to be capable of self-support at age 18, VA is required to proceed no further. Id. Turning to the evidence, the Board observes that the claims file includes remarkably few treatment notes, lay statements, or other pertinent records relating to R.M.’s capacity for self-support at the time of his 18th birthday. As he was born in July 1967, the relevant date for the Board’s initial analysis is the period when he attained age 18 in November 1984. Fortunately, the claims file includes a hearing examination report from only a month before R.M.’s 18th birthday, when he was found to have bilateral hearing loss that was outside the limitations of audiometric testing as well as absent acoustic reflexes bilaterally at the maximum intensity possible. The recommendation was to integrate R.M. into an aural rehabilitation program. As the RO noted in a June 1986 rating decision, the recommendation for rehabilitation suggested that there was potential possibility for improvement in R.M.’s hearing and, logically, a potential that the disability would not continue to limit him in his ability to support himself. However, as explained above in the January 1998 audiological note, R.M.’s profound hearing loss first manifested prior to his being able to speak. More recent evidence from R.M.’s treating physician in 2014 clarifies that he was both deaf and mute since birth. The Board recognizes that this evidence was from after R.M.’s 18th birthday, but the Board has no reason to doubt the medical professional’s competent and probative statements regarding the onset of R.M.’s profound hearing loss. Moreover, the 2014 physician statement also confirmed that R.M.’s disabilities had resulted in total incapacitation. No substantial additional evidence is of record through the time of R.M.’s death. Taken together, the Board finds that there is a competent and probative statement from shortly before R.M.’s 18th birthday suggesting the potential for improvement as well as subsequent statements from treating medical professionals confirming that R.M. had lifelong deafness and inability to speak. The Board finds that the evidence is at least in equipoise regarding R.M.’s incapacity for self-support at the age of 18. Considering the foregoing, and the absence of any competent evidence indicating R. M. was subsequently able to support himself or earn a living at any point prior to his death, the Board finds that the evidence for and against this claim is at least in equipoise. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for recognition of R.M. as his “helpless child” prior to R.M.’s death have been met. Entitlement to such benefit is established. REASONS FOR REMAND Entitlement to recognition of J.M. as the Veteran’s “helpless child” on the basis of permanent incapacity for self-support prior to attaining age 18. The Veteran also seeks recognition of J.M. as his dependent helpless child. However, as was the case with R.M., the record includes relatively few treatment notes, examination reports, and other evidence of R.M.’s functioning at the time of his 18th birthday in November 1984. The claims file does include treatment notes from July 1993 in which J.M. reported a history of sinusitis, nasal allergies, and head pain as well as left eye pain for several months. It is not clear, however, whether (and which) symptoms had only persisted for several months. At the hearing, the Veteran testified that J.M. ultimately was awarded Social Security Administration (SSA) benefits administered. While it was clarified that he was not granted those benefits until 1995, the medical and vocational records underlying that determination might include additional evidence regarding the course and onset of J.M.’s disabilities. Copies of the SSA award and medical records considered in that determination are not in the record. VA has a duty to obtain SSA records, provided they are relevant. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Board is unable to find SSA records would not be relevant. Therefore, a remand is required. The matter is REMANDED for the following action: With any necessary authorization from J.M., obtain for the record from SSA their determination awarding J.M. SSA disability benefits, and the medical records considered in that determination. If the records are unavailable, it should be so noted in the record (with explanation), and the Veteran should be so advised GEORGE R. SENYK 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.