Citation Nr: 21073628 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 17-30 535 DATE: December 9, 2021 REMANDED Entitlement to recognition of B.B. as the Veteran's "helpless child" on the basis of permanent incapacity for self-support prior to attaining age 18 is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Marine Corps from January 1978 to February 2003. B.B. is his adult son. This matter comes before the Board of Veterans' Appeals (Board) from an April 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appealed that decision and appeared and testified before the undersigned Veterans Law Judge in connection with is appeal in September 2020. A transcript of the virtual hearing is included in the claims file. The Board previously considered this matter in December 2020, when it issued a decision finding that the criteria for reopening the claim of recognition of B.B. as the Veteran's "helpless child" were met and remanded the matter for further development. Entitlement to recognition of B.B. as the Veteran's "helpless child" is remanded. As the Board explained in its decision from December 2020, the central question before the Board is whether B.B. experienced physical or psychological disabilities prior to attaining age 18 that rendered him permanently incapable of self-support prior to that date in September 2001. See 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.56. At that time, the record contained incomplete records relating to a disability proceeding with the Social Security Administration (SSA) wherein that agency ultimately determined that B.B. met the criteria of a disabled individual under its rules and regulations. The Board also remanded the matter to attempt to obtain B.B.'s educational records from the time before his 18th birthday and to make reasonable efforts to obtain medical records during B.B.'s periods of incarceration. Pursuant to the Board's remand, VA obtained various educational records for B.B. and the Board now finds that there has been substantial compliance with its directives with respect to B.B.'s educational records. VA also obtained the medical records that supported SSA's decision to grant disability benefits to B.B. However, it does not appear that VA made any attempts to ask the Veteran to provide authorization so that VA could request records from the institutions at which B.B. spent time incarcerated. A remand is required to allow VA to substantially comply with this directive. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also finds that further development is necessary in this matter with respect to the issue of B.B.'s work history. Included in the records received from SSA are several work history reports from early 2009 in which B.B. reported rather substantial periods of work at rates that significantly exceed the United States poverty threshold. Specifically, there is a report of more than three years that B.B. worked as a laborer ending in 2007 during which he engaged in custodial and janitorial work, operated forklifts, and logged various information. At first glance, this information that B.B. was able to work for several years on a full-time basis after his 18th birthday would appear to weigh against a finding that B.B. was rendered permanently incapable of self-support at that time. However, the Board notes that there is some reason to suggest that he did not actually engage in this level of work. For instance, in a private treatment record from March 2009, the longest period of work that B.B. reported was 9 months as a cook while B.B. was in Japan. The Veteran appears to suggest in an August 2021 statement that this laborer work was never stable and each temporary job that B.B. worked during this time quickly ended when B.B. was terminated due to behavioral or substance use problems. The Board finds now that a remand is necessary to gain further information on this essential point. There is currently insufficient information regarding B.B.'s work history to issue a fully-informed decision. Upon remand, VA should ask the Veteran and B.B. to supply tax returns or pay stubs establishing the extent to which B.B. worked during this time and should verify B.B.'s earning history with SSA. These records could substantially assist the Veteran in his claim by providing corroboration to his current contentions that this period did not represent substantial work activities. The matters are REMANDED for the following action: 1. With any necessary assistance or authorization from B.B., ask the Veteran to complete a VA Form 21-4142 for any medical treatment records from any institution at which B.B. has been incarcerated. Make two requests for the authorized records from any identified facility unless it is clear after the first request that a second request would be futile. 2. Ask the Veteran to supply W-2s, tax returns, or other financial records to verify B.B.'s earnings from 2003 through 2007. 3. With any necessary authorization from B.B., contact SSA and request B.B.'s earnings records. (Continued on Next Page) 4. Then, readjudicate the appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.