Citation Nr: 21002592 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 13-25 038 DATE: January 14, 2021 ORDER Entitlement to recognition of LAF, Jr., as a “helpless” child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is granted. FINDING OF FACT The Veteran’s son, LAF, Jr., was permanently incapable of self-support by reason of a mental condition prior to attaining the age of 18 years. CONCLUSION OF LAW The criteria to establish recognition of the Veteran’s son, LAF, Jr., as a helpless child for purposes of VA compensation have been met. 38 U.S.C. § 101(4)(A), 5107; 38 C.F.R. §§ 3.57, 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from June 1971 to September 1971. LAF, Jr., is his adult son. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2012 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board previously remanded this matter in May 2016 to obtain Social Security Administration (SSA) documents pertaining to LAF, Jr.’s SSA disability claim. Although the medical records relied upon concerning the SSA claim were not provided, given that the Board is granting the Veteran’s claim for entitlement to recognition of LAF, Jr., as a “helpless” child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of eighteen, the full benefits sought on appeal, the Veteran is not prejudiced by the absence of the SSA records. The Board notes that the issues of entitlement to higher initial disability ratings for major depressive disorder, gastroesophageal reflux disease, a higher disability rating for posttraumatic stress disorder, and a total disability rating for compensation based on individual unemployability will be subject of a separate Board appellate document. Regarding the matter of representation, the Board sought clarification as to whether Kathy Lieberman, an attorney, represented the Veteran regarding the claim for entitlement to recognition of LAF, Jr., as a helpless child. In a January 2020 statement, Kathy Lieberman indicated that she does not represent the Veteran as to the helpless child claim, which is consistent with the January 2015 and June 2016 VA Form 21-22a Appointment of Individual as Claimant’s Representative, in which the attorney limited the scope of representation to all issues except the helpless child claim. Thus, the Board recognizes the Disabled American Veterans as the correct representative and the July 2013 VA 21-22 Appointment of Veteran Service Organization as Claimant’s Representative has not been revoked as to the matter of the helpless child claim, as the Veteran has not indicated otherwise and there is a December 2015 Informal Hearing Presentation of record. The Veteran contends that LAF, Jr., was rendered permanently incapable of self-support prior to his 18th birthday, and hence is entitled to helpless child status. The record reflects that the Veteran’s son, LAF, Jr., was born in November 1969, and therefore his 18th birthday was in November 1987. 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 as of his or her 18th birthday. 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. Employment which was only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapability of self-support otherwise established. See 38 C.F.R. § 3.356(b)(2). However, lack of employment of the child either prior to the delimiting age or thereafter should not be considered as a major factor in the determination to be made, unless it is shown that it was due to physical or mental defect and not to mere disinclination to work or indulgence of relatives or friends In an August 2011 VA Form 21-686c, Declaration of Status of Dependents, the Veteran indicated LAF, Jr., is his biological son who was born in November 1969 and is seriously disabled and was previously married. The records reflect LAF, Jr., has a complex medical history including a history of a traumatic childhood involving sexual, verbal, and physical abuse, as noted in a February 2014 private treatment record. It also noted he was homeless since 1999. The evidence of record reflects extensive treatment for psychiatric symptoms from 1990 to 2018. The Board will proceed to the relevant medical evidence of record in addressing whether LAF, Jr., became incapable of self-support prior to reaching the age 18. An October 1990 private treatment record noted a history of psychiatric disorder and hospitalization, one related to drug abuse and three hospitalizations for depression. It noted LAF, Jr., had a history of illicit drug use for the last three years. In another October 1990 private treatment record, it was documented that LAF, Jr., underwent a gastric banding procedure approximately four years ago and subsequently went from weighing more than 400 pounds to his present weight of approximately 240 pounds. It noted he developed a severe depressive illness because of his bodily appearance and had been hospitalized in a psychiatric inpatient unit and was being followed by Dr. R of the Bronx Mental Health Center. A November 1990 hospitalization private treatment record noted LAF, Jr.’s grandmother indicated he had a history of multiple hospitalizations preceded by polysubstance abuse. She reported he talked about killing himself and was taken to the emergency room due to hearing voices. Another November 1990 private treatment record reflects LAF, Jr., was seen for an acute exacerbation of schizoaffective disorder. It noted he had a history of a psychiatric disorder since age 17, when he verbalized suicidal thoughts. It noted multiple psychiatric hospitalizations since that time for management of depression. It also noted a history of violent behavior, physical fights, and history of drug abuse. The diagnostic impression was rule out acute exacerbation of schizoaffective disorder, mixed, polysubstance abuse by history, rule out traumatic depressive disorder, and status-post abdominoplasty. Within this record, it documented that LAF, Jr., had last been hospitalized for psychiatric symptoms at Our Lady of Mercy about two months prior. An additional November 1990 private treatment records noted psychiatric records for noted a history of psychiatric problems for past three years when he was hospitalized at Holliswood Hospital. It noted work-up was completed there and LAF Jr., was diagnosed with major depressive disorder. Dr. R was contacted, and she indicated that LAF, Jr., became suicidal one week after starting Prozac. A subsequent November 1990 private treatment record noted LAF Jr., had paranoid delusions and violent thoughts, and that he threated family members with physical items. It noted he needed psychiatric hospitalization. The physician noted diagnosis of schizophrenia and complaints of inappropriate behavior. Another November 1990 private treatment record with some illegible writing, appears to note a history of multiple hospitalizations for paranoid v. delusions. It noted he was violent towards a pet and killed a kitten. A November 1990 private treatment record noted he was diagnosed with schizophrenia, catatonic, with negative toxicology screens. It also noted he was stabilizing, and discharge was recommended. A separate November 1990 private treatment record shows he was accepted at the Saint Vincent’s hospital and was subsequently transferred due to his psychotic break. 1991 private treatment records reflect continued treatment for psychiatric symptoms and depression related to his body image issues. A January 1997 private treatment record noted the LAF Jr., came to the ER for referral of significant history of psychiatric history dating back 10 years. It noted psychiatric episodes are characterized by paranoia and delusional thinking which involves suspicions that other people are out to harm him. The physician indicated that LAF, Jr., was in a drug rehabilitation program at Saint Vincent’s hospital in 1996. In a September 1997 private treatment record, a history of hospitalizations was noted from 1989 to 1990 at Holliswood, Saint Vincent’s Hospital in 1991, and in August 1995 at Our Lady of Mercy. A December 2006 private treatment record noted multiple in-patient admissions and several suicide attempts. He was diagnosed with schizoaffective disorder and history of cocaine, and cannabis dependence. A May 2011 private treatment record also noted a hospitalization due to his schizoaffective disorder, with symptoms of hallucinations and suicidal ideations. It also noted hospitalizations since age 19. In an October 2011 private medical letter, the psychologist indicated LAF, Jr., was a forty-one year-old unemployed male with a history of schizoaffective disorder and polysubstance dependence and that he was treated from September 9, 2011, to September 21, 2011, and he brought himself to the hospital because he was experiencing auditory and visual hallucinations, in addition to religious and grandiose delusions, and was in need of more medication. The psychologist stated LAF Jr., had his first psychiatric hospitalization at age 19, and had approximately 40 to 50 total psychiatric hospitalizations, including a state hospitalization in 1996. He indicated LAF Jr., endorsed a history of prior depressive episodes consisting of depressed mood, alternating hypersomnia and insomnia, anhedonia, decreased appetite, lethargy, decreased concentration, and feelings of worthlessness, hopelessness, and guilt. He noted a history of several past suicidal attempts. The psychologist noted a history of psychotic symptoms, including paranoid ideation, IOR, AH, VH, TH, TW, and thought others had read his mind. The psychologist also noted a history of polysubstance abuse but noted he had been abstinent for the past two years. A June 2012 private treatment record noted history of psychiatric admission since age 19. He walked into the ER for refill and he was confused. The physician found him psychotic with delusions. The Impression was schizoaffective disorder, bipolar type, hallucinations, and suicidal ideations. In a statement dated in June 2014 from an individual identified as S.D., she reported LAF., Jr., was bullied in high school, and he started taking drugs and was later diagnosed with schizophrenia. She indicated he had been at various mental institutions and continued to receive treatment and medication for mental care. She indicated he was treated at the Bronx Psychiatric Mental Institution, Our Lady of Mercy Mental Institution in Bronx, New York, the Metropolitan Mental Institution in Manhattan New York, the North Bronx Institution in Bronx, New York, and the Saint Vincent Mental Institution in upstate New York, as well as the Neurological Mental Institution. An October 2014 private treatment record noted LAF, Jr., has a long history of schizoaffective disorder and polysubstance abuse by history. He noted LAF, Jr., was delusional, religiously preoccupied, paranoid, and hostile in the past to the point of suicidality. The physician noted he was first hospitalized at age 19 when he began to show psychiatric symptoms and two reported suicide attempts by walking into traffic in 1982 and 2012 and cutting wrists. In a January 2015 statement, LAF Jr.’s mother reported he had thoughts of killing himself since age 9 and that when he was 16 years old, he ran across the street and was hit by a car. She indicated that he started a cycle of hospital stays, including at the Saint Vincent Hospital and Our Lady of Mercy Hospital in Westchester. July 2018 private treatment records also noted LAF Jr., started using drugs in July 2018 and was hospitalized in 2016 and 2017. It also noted a history of two reported suicide attempts, including walking into traffic in 1982 and 2012, and cutting his wrists. Based on the foregoing, the Board finds that the evidence shows that the Veteran’s son, LAF, Jr., has a psychiatric disorder, permanent in nature, and had developed such psychiatric disorder prior to the age of 18. Here, although records prior to LAF, Jr.’s 18 birthday are not of record, the records from October to November 1990, when LAF, Jr., was 19 years old indicate he was diagnosed with a psychiatric disorder prior to his 18th birthday. Here, the October 1990 private treatment record noted LAF Jr., had a history of psychiatric disorder and hospitalizations. It also noted a history of a suicide attempt in 1989. The November 1990 private treatment record also noted his history of psychiatric disorder since age 17, when he verbalized suicidal thoughts and that since that time, he has had multiple psychiatric hospitalizations. He was diagnosed with schizoaffective disorder and acute psychotic break during that time. The separate November 1990 private treatment noted a history of psychiatric problems for past three years when he was hospitalized at Holliswood Hospital when he was diagnosed with major depressive disorder. The Board finds statements made for the purpose of treatment, to include reports of prior medical history pertaining to a current medical issue, tend to be highly reliable, as it is in the patient’s best interest to provide information as accurate as possible to receive the most appropriate treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The evidence reflects consistent aggressive, violent, suicidal and psychiatric behavior, that has resulted in multiple hospitalizations, to include prior to LAF, Jr.’s 18th birthday. LAF, Jr.’s symptoms, to include suicidal ideations, suicidal attempts, delusions, and hallucinations due to his psychiatric disorder appears to prevent him from obtaining sufficient income for reasonable support, as indicated by his continuous dependence on long term medication, therapy, and hospitalizations prior to and shortly after his 18th birthday, as well as in the present time. Notably, the records do not indicate that he has ever worked, and he has experienced homelessness since at least 1999 due to his psychiatric disabilities with an onset of psychiatric symptoms pre-dating his 18th birthday. The evidence also reflects statements from the Veteran, as well as LAF, Jr.’s mother and S.D., describing LAF, Jr.’s mental history with an onset prior to his 18th birthday. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). These statements, when considered with the medical evidence of record in close proximity to when LAF, Jr., was 18 years old, provide competent and credible evidence that LAF, Jr.’s psychiatric disabilities have been a continuous obstacle to self-support and that he was unable to be gainfully employed prior to his 18th birthday. Accordingly, the Board finds that LAF, Jr., was permanently incapable of self-support due to a mental condition prior to the age of 18. A. P. SIMPSON 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.