Citation Nr: 21067618 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-62 554 DATE: November 4, 2021 ORDER Entitlement to survivor benefits, on the basis that the appellant is permanently incapable of self-support, to include service connection for cause of death and dependency and indemnity benefits under 38 U.S.C. § 1151, is denied. FINDING OF FACT The appellant does not meet the statutory definition of a child as defined in 38 U.S.C. § 101(4)(A). CONCLUSION OF LAW The criteria for survivor benefits, on the basis that the appellant is permanently incapable of self-support, to include service connection for cause of death and dependency and indemnity under 38 U.S.C. § 1151, are not met. 38 U.S.C. § 101(4); 38 C.F.R. §§ 3.55, 3.57, 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from December 1951 to November 1955. The Veteran died in May 2011. The Appellate is the Veteran's surviving child. This case was previously before the Board of Veterans' Appeals (Board) and was denied in an April 2019 decision. The Appellant appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In an April 2020 memorandum decision, the Court vacated and remanded the April 2019 decision, directing the Board to provide an adequate statement of reasons or bases addressing whether the Appellant was permanently incapable of self-support before the age of 18. Entitlement to Survivor Benefits Upon the death of a veteran, survivor benefits are paid to the first living person in a list as follows: the veteran's spouse, the veteran's children (in equal shares), or the veteran's dependent parents (in equal shares) or surviving parent. 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000 (a)(1). In the present case, the Appellant is the Veteran's surviving child. The term "child" is defined, for purposes of veterans' benefits, as an unmarried person who is under the age of 18 years; or who, before reaching the age of 18 years, became permanently incapable of self-support; or who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57. To establish entitlement to VA benefits on the basis of incapacity for self-support, or being a helpless child, various factors under 38 C.F.R. § 3.356 are for consideration. The principal factors are: (1) The fact that a claimant is earning his or her own support is prima facie evidence that he or she is not incapable of self-support. Incapacity for self-support will not be considered to exist when the child by his or her own efforts is provided with sufficient income for his or her reasonable support. (2) A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of 18 years, may be so held at a later date even though there may have been a short intervening period or periods when his or her condition was such that he or she was employed, provided the cause of incapacity is the same as that upon which the original determination was made and there were no intervening diseases or injuries that could be considered as major factors. 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. (3) It should be borne in mind that employment of a child prior or subsequent to the delimiting age may or may not be a normal situation, depending on the educational progress of the child, the economic situation of the family, indulgent attitude of parents, and the like. In those cases where the extent and nature of disability raises some doubt as to whether they would render the average person incapable of self-support, factors other than employment are for consideration. In such cases there should be considered whether the daily activities of the child in the home and community are equivalent to the activities of employment of any nature within the physical or mental capacity of the child which would provide sufficient income for reasonable support. 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. (4) The capacity of a child for self-support is not determinable upon employment afforded solely upon sympathetic or charitable considerations and which involved no actual or substantial rendition of services. In this case, the Appellant has not met the threshold requirement of establishing standing to receive survivor benefits. Specifically, the evidence does not show that she meets the definition of a "child" for purposes of veterans' benefits as defined under 38 C.F.R. § 3.57. First, the evidence does not show that, at the time of the Veteran's death, the Appellant was an unmarried person who was under the age of 18 years or between the age of 18 years and 23 years and pursuing a course of instruction at an approved educational institution. The January 2017 application for benefits and submitted birth certificate indicates that the Appellant was born in April 1965. The Veteran died in May 2011. Accordingly, the Appellant was well over the age of 18 years at the time of the Veteran's death. The Board's inquiry thus turns to whether the Appellant became permanently incapable of self-support before reaching the age of 18 years. The Appellant has asserted that she became permanently incapable of self-support before the age of 18. In a March 2017 NOD, the Appellant reported that prior to turning 18, she suffered two accidents that resulted in severe injuries. The first accident reportedly occurred when she was 16 years old and resulted in a coma that lasted 30 days, broken teeth, broken left collar bone, and a crack in her head that required stitches. The second accident reportedly occurred less than two years later and resulted in a coma that lasted for 30 days, right leg damage, and right hip damage. She reported that as a result of the accident, she has been "crippled" her whole life. In July 2021 correspondence, childhood friend B.M. indicated that the Appellant was in a car accident and was badly injured. B.M. further stated that this was one of the most serious incidents that affected the Appellant's health, physically and mentally. The Board acknowledges that the Appellant has been consistent in describing these motor vehicle accidents as occurring before or close to when she turned 18 years of age and does not dispute that she was in an accident prior to turning 18 years. However, the Board finds that the weight of the evidence does not show that she was permanently incapable of self-support by reason of mental or physical defect, to include as due to these accidents, at the date of attaining the age of 18 years. Though the medical evidence establishes that the Appellant has current disabilities and that some disabilities may stem from the motor vehicle accidents, it does not establish that she was permanently incapable of self-support before reaching 18 years. A May 2017 letter from the Appellant's physician, Dr. S.K., indicates that the Appellant had been a patient for over 10 years. Dr. S.K. stated that although she did not have actual records of the Appellant's two severe car accidents, she had been consistent in her reporting and bears the physical scars of dental damage and right knee surgery. She further reported the Appellant continued to have chronic pain in her right knee and hip. Dr. S.K. did not address whether the Appellant was permanently incapable of self-support by the age of 18 years. Available medical treatment records, to include Social Security Administration (SSA) evaluations, dated from 1993 to 2012 indicate that the Appellant has several physical and mental health ailments, to include status post head injuries from auto accidents with no deformity, right hip injury, right patella arthritis, front teeth loss, PTSD, major depressive disorder, and mild neurocognitive disorder. While this evidence establishes that the Appellant has current ailments, it does not show the Appellant was permanently incapable of self-support before the age of 18. The Board notes that the record lacks contemporaneous medical records from or close in time to the motor vehicle accidents. The agency of original jurisdiction (AOJ) has attempted to obtain additional information from the Appellant, by way of April 2021, May 2021, and June 2021 VA correspondences. To date, however, the Appellant has not identified any additional information or provided any releases that would allow the AOJ to request such records. A claimant, in pursuing a claim, has the responsibility to cooperate in the development of all facts pertinent to his or her claims, and the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Appellant has failed to cooperate and has not identified any additional information or provided any releases for contemporaneous medical records to assist with the case. Accordingly, the case must be adjudicated on the existing evidence of record. Further, the Appellant has a long work history, indicating that the presence of the above disabilities did not render her permanently incapable of self-support by the age of 18 years. The evidence shows that after turning 18 years old, the Appellant worked as a massage therapist for 5 years, fitness instructor for 5 years, cashier and customer service for 12 years, waitress for 4 years, file clerk for 10 years, computer programmer for 2 years, and home health care aid for 4 years. Pursuant to a SSA work history report, she worked 8 hours a day for 5 days a week as a cashier and customer service associate, home health aide, nursing assistant, and massage therapist. She reported that as a massage therapist, she made $65.00 per hour working 40 hours per week. In January 2017, the appellant submitted a SSA earnings statement dated up to 2015. It indicates that the Appellant's highest earnings were $13,853 in 2007. This exceeds the poverty threshold of $10,590 for a single individual and $13,540 for two individuals in a household in 2007. See United State Census Bureau, Poverty Thresholds, available at http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. She additionally earned $12,252 in 2012 and 2013, which exceeds the poverty thresholds of $11,720 and $11,888 for a single individual in 2012 and 2013. The fact that a claimant is earning his or her own support is prima facie evidence that he or she is not incapable of self-support. 38 C.F.R. § 3.356(b)(1). Incapacity for self-support will not be considered to exist when the child by her own efforts is provided with sufficient income for her reasonable support. Id. As an additional matter, the Board notes that pursuant to 38 C.F.R. § 3.356, 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. Here, the evidence indicates that the Appellant's varied work history may have been affected by the indulgence of relatives. Specifically, in a January 2009 VA treatment record, the Veteran reported that his daughter has taken advantage of his financial generosity. Ultimately, the evidence shows that though the Appellant worked in various positions and occupations, she remained at jobs for several years, spanning from 2 to 10 years at a time. Additionally, her earnings exceeded the poverty threshold for a single individual and two individuals in 2007. Accordingly, the Board finds that the Appellant was not engaged in employment that was only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability. Further, the Veteran has previously indicated that he indulged in helping the Appellant financially. Accordingly, the Board finds that the presence of disabilities, to include as due to motor vehicle accidents, did not render the Appellant permanently incapable of self-support by the age of 18. Further, the Board notes that marriage is a bar to survivor's benefits. Pursuant to 38 C.F.R. § 3.57, the term "child" is defined, for purposes of veterans' benefits, as an unmarried person. Here, the Appellant has reported that she married and divorced after the age of 18 years. In June 2017, she reported that she was married and divorced from 1991 to 1992. In October 2007, she reported to SSA that she had been divorced for 8 years, was in a common law relationship for 3.5 years, and got married and divorced a year later. From March 2009 to June 2010, she discussed marital distress and conflict with her treating providers. Additionally, in a May 2010 treatment record, she reported to a provider that she was married to someone. Thereafter, she reported that she was divorced, per a March 2017 pension eligibility report. In light of the above, the Board finds that the preponderance of the evidence indicates that the Appellant has been married and divorced after turning the age of 18. The Board notes that attempts have been made to clarify the Appellant's current marital status by way of March 2017, April 2017, April 2021, May 2021, and June 2021 correspondences. However, the Appellant has declined to submit any marriage certificates or divorce decrees to clarify the matter. Again, the duty to assist is a two-way street. In the absence of clarification from the Appellant, the Board will find evidence establishes that the Appellant has been married at least once after turning the age of 18 years old. The Board notes that marriage of a child terminated prior to November 1, 1990, shall not bar the furnishing of benefits to or for such child provided that the marriage: (i) has been terminated by death, or (ii) has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by either party or by collusion. 38 C.F.R. § 3.55(b)(2). In this case, the Appellant has not submitted any divorce decrees indicating that her marriage has been dissolved. Instead, she has merely reported that she was married for one year and divorced from 1991 to 1992. See June 2017 Statement. As the reported divorce occurred after November 1, 1990, the above-noted exception does not apply. Additionally, the Appellant has indicated that she either remarried or remained married from at least March 2009 to June 2010, according to private treatment records. Marriage is a bar to survivor benefits and, accordingly, the Appellant is not entitled to survivors' benefits. In sum, as the Appellant does not meet the statutory criteria to qualify as a surviving child of the Veteran, entitlement to survivor benefits to include permanent incapacity for self-support, service connection for cause of death, and dependency and indemnity benefits under 38 U.S.C. § 1151 is not warranted. As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Vang, 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.