Citation Nr: A21018734 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 191121-44636 DATE: November 23, 2021 REMANDED Entitlement to recognition of E.M. as the "helpless child" of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18 is remanded. REASONS FOR REMAND The Veteran, who is the appellant, served on active duty from May 1966 to May 1968. E.M. is the Veteran's adult son. A rating decision was issued under the legacy system in February 2017. In March 2017, the Veteran sought reconsideration of the February 2017 decision, which was denied in a June 2017 rating decision. The Veteran filed a legacy Notice of Disagreement (NOD) in June 2018. In January 2019, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in February 2019, which is the decision on appeal. In the November 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may consider only the evidence of record at the time of the February 2019 AOJ decision on appeal. 38 C.F.R. § 20.301. The Board notes that the Veteran filed a legacy notice of disagreement on VA Form 21-0958 in June 2019, however, this legacy NOD is invalid, as the Veteran opted his appeal into the AMA. The Veteran submitted E.M.'s Social Security Administration (SSA) records in March and May 2017. However, it appears there are outstanding SSA records that must be obtained. Specifically, an October 2011 SSA office of Disability Adjudication decision referenced that E.M. provided video testimony in September 2011 and that Joyce P. Forrest, an impartial vocational expert also appeared at the hearing. However, a transcript of the hearing is not associated with the record. In addition, in March 2013, upon receipt of E.M.'s request to remand the October 2011 SSA decision, SSA remanded the case to include consideration of further review of E.M.'s residual capacity, discuss Dr. Chavin's findings to include that he could not sit in a normal posture for longer than 15 to 20 minutes, and clarification as to how high E.M. needed to elevate his leg when sitting. In doing so, SSA was to obtain additional evidence concerning E.M.'s impairments, if appropriate, request treating and non-treating sources to provide additional evidence and/or clarification regarding what E.M. can do despite his impairments, and obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on E.M.'s occupational base, and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT). The Board also notes that August 2013 hearing notices show E.M. was scheduled for an additional SSA hearing in September 2013 and that vocational expert, Ernest W. Brewer was also requested to appear and provide expert testimony at that time. However, the September 2013 SSA hearing transcript and additional SSA evidence and decision related to the March 2013 SSA remand has not been associated with the record. In connection, the Veteran has indicated that E.M. was awarded SSA disability benefits since 2009. See November 2019 correspondence submitted with VA Form 10182 Board appeal. Notably, a January 2014 SSA letter received in December 2016 shows E.M. was awarded backpay in supplemental security income. Thus, the Board finds that a remand is required as there is a pre-decisional duty to assist error and an effort must be made to locate and associate E.M.'s relevant SSA records with the Veteran's claims file. The matter is REMANDED for the following action: Obtain and associate with the file E.M.'s (not the Veteran) complete records from the Social Security Administration related to the claim for SSA benefits (SSI and SSD), including: 1) the September 2011 SSA hearing transcript to include testimony from E.M. and Joyce P. Forrest, a vocational expert, referenced in the October 2011 SSA decision; 2) the September 2013 SSA hearing transcript, to include testimony from E.M. and Ernest W. Brewer, a vocational expert, as scheduled in August 2013 SSA hearing notices; 3) all SSA administrative decision(s) (favorable or unfavorable). Please note the Veteran reported E.M. was awarded SSA disability benefits from 2009 and a January 2014 SSA letter received in December 2016 shows E.M. was awarded backpay in supplemental security income; and 4) as well as all medical records relied upon concerning the SSA claims. Follow the procedures set forth in 38 C.F.R. § 3.159 regarding requests for records from Federal facilities. If such records are unavailable, a negative response must be obtained and associated with the claims file. 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.