Citation Nr: 21006442 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-17 401 DATE: February 4, 2021 ORDER Entitlement to recognition of the Veteran's daughter as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is denied. FINDING OF FACT The Veteran’s daughter, C. B., has been diagnosed with significant disabilities including scoliosis, anxiety, major depressive disorder (MDD), irritable bowel syndrome (IBS), and gastroesophageal reflux disease (GERD), but has not been shown to have been permanently incapable of self-support by reason of a mental or physical condition prior to attaining the age of 18 years. CONCLUSION OF LAW The criteria to establish recognition of the Veteran’s daughter, C. B., as a helpless child for purposes of VA compensation are not met. 38 U.S.C. § 101(4)(A), 5107 (2018); 38 C.F.R. §§ 3.57, 3.356 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from January 1970 to December 1973, from July 1981 to July 1985, from August 1985 to May 1988, and from March 1989 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran, his spouse, and his daughter, C.B., testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In a January 2018 decision, the Board denied the claim for recognition of C.B. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18. The Board noted that her continued employment with a medical center for many years as well as her numerous documented daily activities in the home caring for her parents were illustrative of her ability to provide sufficient income for reasonable support. The Veteran appealed this decision. In a July 2018 decision, the Board denied the Veteran’s January 2018 Motion for Reconsideration of the January 2018 Board decision. In December 2018, the United States Court of Appeals for Veterans Claims (Court) granted a December 2018 Joint Motion for Remand (JMR) by counsel for the Veteran and VA, vacated the Board's January 2018 decision, and remanded this matter to the Board for development consistent with the JMR. In October 2019, the Board, in turn, remanded the case to the Agency of Original Jurisdiction (AOJ) to carry out the Court’s instructions. The requested development is complete and the matter has been returned to the Board for further appellate review. As noted in the January 2018 Board decision, the issue of entitlement to benefits under 38 U.S.C. Chapter 18 for a child of a Vietnam veteran born with birth defects has been raised by the record in an August 2012 written statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that matter and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2018). Additionally, in July 2020, the Veteran filed a Form 21-0304, Application for Benefits for Certain Children with Disabilities Born of Vietnam and Certain Korea Service Veterans. A disposition on the matter has not been made. VA’s Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2018); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The VCAA applies to the instant claim. VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Nonetheless, a claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C. § 5107(a). While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA’s duty to notify was satisfied by a letter dated in September 2012. See 38 U.S.C. §§ 5102, 5103, 5103A (2018); 38 C.F.R. § 3.159 (2020). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This “duty to assist” contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained or the Veteran has submitted copies of private treatment records, high school records, college records, employment records, and records from the Social Security Administration (SSA). It has afforded the Veteran the opportunity to present testimony, written statements, and evidence. The Veteran was also repeatedly given the opportunity to submit, or authorize VA to request copies of private treatment records. He further informed VA that attempts to obtain additional records from the San Diego School District were unsuccessful. In addition, review of the September 2017 Board hearing transcript demonstrates that the undersigned complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). Prior to the January 2018 Board decision in the matter, the Veteran reported that he was unable to testify at the Board hearing and therefore wanted another hearing in the matter. The Board hearing transcript shows the Veteran did testify at the Board hearing. The Veteran was therefore not entitled to a second hearing prior to the January 2018 Board decision. The Veteran has not since requested another hearing. Pursuant to Court remand and the October 2019 Board remand, VA sought records from the Naval Medical Center in San Diego. In November 2020, the Naval Medical Center informed VA that such records no longer exist because of the length of time that had passed. VA notified the Veteran of this in a November 2020 letter. In addition, the Board notes that in a written statement received in July 2019, the Veteran requested that the VA stop searching for such records as there was no more evidence that could be obtained and the case had dragged on for too long. Thus, there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has not arranged for C. B. to undergo a contemporaneous examination to substantiate the helpless child claim on appeal. 38 U.S.C. § 5103A (d) (2020). A medical examination or opinion is not deemed to be necessary to make a decision this appeal, as a medical opinion obtained on the question of whether C. B. was permanently incapable of self-support by the age of 18 would be speculative, especially given the lack of contemporaneous medical documentation from her childhood upon which to base any meaningful conclusion. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. 1. Entitlement to recognition of the Veteran's daughter as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18. The Veteran seeks to obtain recognition of his daughter, C. B., as a helpless child on the basis of permanent incapacity for self-support prior to attaining the age of 18. Veterans that have been awarded 30 percent or more for service-connected disability are entitled to additional compensation for dependents. 38 U.S.C. § 1115 (2018); 38 C.F.R. § 3.4(b)(2) (2020). Recognition of C.B. on this basis would allow additional dependency compensation past her 18th birthday. The term “child” for purposes of benefits under Title 38 of the United States Code is specifically defined. For the purpose of claiming eligibility under Title 38 a “child” must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before reaching 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) (2018); 38 C.F.R. §§ 3.57(a)(1), 3.315 (2020). A child must be shown to be permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. 38 C.F.R. § 3.356(a) (2020). Rating decisions regarding whether a child is shown to be permanently incapable of self-support will be 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. 38 C.F.R. § 3.356(b) (2020). 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 own support. 38 C.F.R. § 3.356(b)(1) (2020). A child shown by proper evidence to have been permanently incapable of self-support prior to 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 that the cause of the 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 major factors. Employment that was only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability should not be considered as rebutting permanent incapacity for self-support otherwise established. 38 C.F.R. § 3.356(b)(2) (2020). It should be borne in mind that employment of a child prior to 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 the 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 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 date or thereafter should not be considered 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. 38 C.F.R. § 3.356(b)(3) (2020). 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. 38 C.F.R. § 3.356(b)(4) (2020). The focus of analysis is on the child’s condition at the time of her 18th birthday. It is that condition which determines whether entitlement to the status of “child” should be granted. Dobson v. Brown, 4 Vet. App. 443 (1993). The Veteran’s daughter was born in September 1985 and turned 18 in September 2003. In written statements of record, the Veteran has asserted that his daughter continues to live in his household and is impaired in both mental and physical functioning due to severe back pain from scoliosis, anxiety, major depressive disorder (MDD), irritable bowel syndrome (IBS), impairment of the lower extremities, and gastroesophageal reflux disease (GERD). It was reported that C.B. received medical disability benefits from SSA for a five-month period in 2011. The Veteran indicated that C. B. had attended college for a few years then obtained a laboratory assistant job at Sharp Medical Center in 2006 through a family friend as a flexible employee, first on a part-time basis and then working 30 to 32 hours per week. He reported that the San Diego School District was unable to locate C. B.’s school records. The Veteran later provided an exhaustive list of chores and assistance his daughter provided him and his spouse on a daily basis. Private treatment records dated in 2011 revealed findings of MDD, GERD, mild scoliosis, anxiety, and IBS. An April 2011 X-ray report listed an impression of mild scoliosis as well as complaints of recurrent back pain with prior history of scoliosis. An April 2014 notation on the record from the treating private physician detailed that C. B. first came for treatment in 2010 and had back pain that was most likely secondary to scoliosis. Psychiatric treatment records dated in 2011 reflected that C.B. complained of depression and anxiety, reported having a lonely childhood, was coping with her mother’s recent illness, and received adequate support from her parents. C. B. was shown to be approved for intermittent medical leave from July 2012 to January 2013 as well as noted to have bilateral knee and back pain in records from her employer. In a June 2013 statement, C. B.’s nanny from 1990 to 1996 indicated that she was a shy child with a bladder disorder that sometimes required use of diapers during school as well as a spine problem that led to restriction of her activities. In another June 2013 statement, a family friend, N. E., detailed C. B.’s medical condition when she was young (from 5 to 16 years old), noting that she was treated for back problems from scoliosis during school and received medical excuse notes. In additional June 2013 statements, C. B. and the Veteran’s spouse indicated that during school her daughter would tire easily, suffered from daily back pain from scoliosis, wore diapers to school for her bladder problems, and obtained medical slips to exempt her from physical education classes. The letters indicated that C.B. was very embarrassed about her use of diapers and inability to participate in physical activities. The letters also noted that she was shy and had few friends. The letters noted that after high school, C. B. obtained part-time employment (four hours daily for three days a week) at a recreation center for about six months. Due to the job requiring her to lift supplies and her inability complete those tasks due to back pain and GERD/IBS problems, C. B. decided to end her employment before she was terminated. After attending several semesters of college at different institutions, C. B. was then hired as a medical clerk at a medical center. School transcripts and a letter from the principal associated with the record detailed that the Veteran successfully graduated from high school. She was noted to rank in the top 21 percent of the class. In a September 2017 statement, C.B.’s grade-school teacher indicated that C.B. did not partake in physical education activities and had learned to accept her medical condition, enjoying her academic work. During the September 2017 Board hearing, C. B. testified that she continued to work as a part-time clerk and care for her parents. She reported seeking medical care for her scoliosis and therapy for psychiatric symptomatology in 2011 as well as receiving disability assistance for a few months in 2012. She further indicated that current treatment of her back condition consisted of over the counter pain relievers and exercising. A January 2018 statement C.B.’s acting supervisor and co-worker regarding special accommodations was received. The supervisor stated that C.B. works as lab assistant which entails answering phones, registering outpatients, getting lab results for physicians and lifting some supplies. The supervisor stated that she has been assisting C.B. fulfill her job duties due to her frequent restroom needs, which are 6 to 8 times per shift. C.B. cannot sit in the duty chair and answer calls for more than 30 minutes, without standing or being relieved temporarily, so a co-worker may have to cover the duty. She cannot lift heavy supplies and due to mood swings, she may leave early. In March 2018, the Veteran discussed C.B.’s worsening back and neck disorders. He indicated C.B. has poor eyesight and that the loss of a seven-year relationship with a young adult male in September 2017 caused a deep depression. The Board finds that the preponderance of the evidence is against the claim of entitlement to recognition of C. B. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18. While the Board acknowledges that C. B. clearly had some degree of disability that impaired functioning at that time and caused her pain, there is no contemporaneous medical evidence that documents that C. B. by the age of 18 in 2003 was so impaired by these disabilities that she was permanently incapable of self-support. Statements from family friends as well as C. B.’s nanny and grade school teacher simply detailed that she was observed to have a bladder/bowel disorder that necessitated the use of diapers in grade school and back pain from scoliosis that required restrictions in physical activities through completion of high school. Although the Board acknowledges the embarrassment and poor reception she may have received from her classmates from elementary school through high school, such hardship does not indicate that she was permanently incapable of self-support at that time. While the focus of Board’s analysis is on C. B.’s condition at the time of her 18th birthday, her ability to attend college in the few years after high school is indicative that she was not permanently incapable of self-support prior to her 18th birthday. Although there is lay evidence that she left school due to it all being hard on her, the Board finds that not especially credible, considering she went to work shortly after leaving school and because she asserted that she would like to return to college to receive her degree. Furthermore, C.B.’s continued employment with the medical center for many years as well as her numerous documented daily activities in the home caring for her parents are illustrative of her ability to provide sufficient income for reasonable support. The Board notes that C.B. is afforded accommodations in her job at the medical center laboratory. Nonetheless, she appears to be rendering substantive activities and the employment is not just for charitable purposes. On the whole, however, the most probative evidence of record, namely her high school transcripts and lay statements describing C.B.’s functioning through age 18, are against a finding that she was permanently incapable of self-support. Assertions by the Veteran, his spouse, and C. B. regarding her need for care on a continual basis due to physical and mental impairments and inability to maintain part time employment directly after high school are competent evidence that C. B. may have required assistance from her parents prior to attaining age 18. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the fact remains that the available evidence does not demonstrate that C. B. was incapable of self-support prior to attaining age 18. While they are competent to describe C. B.’s physical and mental symptoms, the determination as to whether she was permanently incapable of self-support by reason of mental or physical defect by age 18, under VA standards, is medical in nature and thus not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Based on the foregoing discussion, the Board finds that the criteria have not been met to recognize the Veteran’s daughter, C. B., as a helpless child on the basis of permanent incapacity for self-support prior to the age of 18. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim that doctrine is not applicable. 38 U.S.C. § 5107(b) (2018); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, 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.