Citation Nr: 21006789 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 10-11 055 DATE: February 5, 2021 ORDER Entitlement to recognition of A.S. 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 A.S. is the stepchild of the Veteran; however, she does not qualify as a child or dependent of the Veteran for Department of Veterans Affairs (VA) purposes due to evidence that A.S. is married. CONCLUSION OF LAW The criteria to recognize A.S. as a “helpless child” of the Veteran have not been met. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.55, 3.57, 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from February 1983 to September 1991 and from June 2007 to December 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Board denied the Veteran’s claim for recognition of A.S. as a helpless child. The Veteran appealed this denied claim. In December 2018, the United States Court of Appeals for Veterans Claims (Court) issued a Memorandum Decision, finding that the Board erred insofar as it denied the Veteran’s claim for recognition of A.S. as a helpless child. Specifically, the Court stated that the Board provided an inadequate statement of reasons or bases for finding that the duty to assist had been met with regard to obtaining the private medical records necessary to substantiate the Veteran’s claim, including the medical records identified in the VA Forms 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), submitted by the Veteran in August 2009. Therefore, the Court vacated the Board’s decision denying the Veteran’s claim for recognition of A.S. as a helpless child, and remanded the matter to the Board. In June 2019, the Board remanded this appeal for additional development consistent with the Court Memorandum Decision. As explained in the October 2020 Board remand, after the RO attempted to obtain completed VA Forms 21-4142, signed by A.S., the Board found there was still a question as to whether the Veteran had been afforded sufficient notice of what is required and opportunities to submit the necessary medical releases for A.S.’s medical treatment records, including completed copies of VA Form 21-4142 that have been signed by A.S. As such, the Board remanded the claim again. Pursuant to the Board remand, in October 2020, the RO provided the Veteran with a VA Form 21-4142, Authorization and Consent to Release Information to VA and requested that A.S. complete and submit the form for each identified medical providers, specifically to include the provider and facility identified in the August 2009 VA Forms 21-4142, i.e., Laurel Ridge Hospital, Starlight Treatment Facility, Banner Health Hospital, Mission vista Hospital, Summer Sky Treatment Facility, Dr. Reposa, and Dr. Serrano. The RO also informed the Veteran that if he did not respond within 30 days, a decision on his claim would be issued. A December 2020 supplemental statement of the case was issued that also noted the Veteran had been asked to provide new releases for A.S.’s medical treatment records and a response had not been received. To date, the Veteran has not responded. The “duty to assist is not always a one-way street” and the appellant is obliged to cooperate in the development of the pending claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). Thus, and despite being informed of his duty to provide such, the Veteran failed to submit the information requested in the October 2020 letter. Pursuant to the remand, the RO also obtained SSA records. Thus, the Board finds that no further action in this regard is required, as the RO substantially complied with the Board remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Analysis The Veteran contends that his stepdaughter, A.S., was rendered incapable of self-support prior to attaining the age of 18. A.S. was born in October 1987, and thus, she reached the age of 18 in October 2005. The term “child” for VA purposes means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran’s household or was a member of the veteran’s household at the time of the veteran’s death, or an illegitimate child; and (i) who is under the age of 18 years; or (ii) who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) 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 approved by the Department of Veterans Affairs. 38 U.S.C. § 101 (4)(A); 38 C.F.R. §§ 3.57(a)(1). For purposes of initially establishing “helpless child” status the child’s condition subsequent to the 18th birthday is not for consideration. If a finding is made that a child was permanently incapable of self-support as of his or her 18th birthday, then evidence of the claimant’s subsequent condition becomes relevant for the second step of the analysis; i.e., whether there is improvement sufficient to render the claimant capable of self-support. Dobson v. Brown, 4 Vet. App. 443, 445 (1993). 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. 38 C.F.R. § 3.356(b)(1). A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of eighteen 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. 38 C.F.R. § 3.356(b)(2). 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. Marriage is not a bar to the payment of pension or compensation to a helpless child under an award approved prior to April 1, 1944, but as of that date pension or compensation may not be approved for a helpless child who has married. 38 C.F.R. § 3.950. The marriage of a child of a veteran shall not bar recognition of such child as the child of the veteran for benefit purposes if the marriage is void, or has been annulled by a court with basic authority to render annulment decrees unless the Secretary determines that the annulment was secured through fraud by either party or collusion. 38 U.S.C. § 103(e); see also 38 C.F.R. § 3.55(b)(1). Although a child who has been married must now obtain an annulment to qualify for benefits as a helpless “child of the veteran,” on or after January 1, 1975, a child whose marriage has been terminated by death or dissolved by a divorce decree would still qualify for benefits as a “child of the veteran,” if the divorce decree was obtained prior to November 1, 1990. 38 C.F.R. § 3.55(b)(2); see Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8004(a)(2), (b), 104 Stat. 1388, 1388-343 (1990). After a careful review of the record, the Board finds that recognition of A.S. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is not warranted. In this case, the evidence reflects that A.S. is the Veteran’s stepdaughter prior to her 18th birthday, as a birth certificate associated with the claims file in March 2008 establishes that B.G. is A.S.’s biological mother and a marriage certificate, also received at that time, reflects the Veteran married B.G. in June 2005. There is no indication in the record that the Veteran and B.G. are divorced. However, the record reflects that an April 2019 SSA letter associated with the record in June 2019, attached with a congressional inquiry, indicated that A.S.’s SSA disability claim was filed in November 2005 and she was found disabled since January 1994, and that A.S. got married in April 2010, thus her disability benefits were terminated at that time, as marriage is a terminating factor for SSA child benefits. In addition, the SSA records include a June 2011 functional report questionnaire completed by K.T., in which he indicated that he is A.S.’s husband. In the questionnaire, K.T. described A.S. as a good mother who feeds, bathes, changes, and takes care of their three-year-old daughter’s needs. He also noted she takes care of their dog, can pay bills, handle savings account and checkbooks, has hobbies and engages in social activities. He further indicated A.S. had never been fired or laid off due to problems getting along with people. In a July 2011 functional report completed by A.S., she also indicated that K.T is her husband. In a May 2013 statement completed by P.K., listed as a friend, he indicated that he lived with A.S. for 2 years and that both A.S. and K.T., as well as both sets of grandparents are involved in A.S.’s daughter’s life. Although A.S. and K.T.’s marriage certificate is not of record and an April 2013 private treatment record noted A.S. was separated with one child and lives with her boyfriend, there is no indication that A.S. is legally divorced. Nonetheless, even if A.S. divorced K.T. after their marriage in April 2010, such divorce would have occurred after November 1, 1990, and there is no indication A.S.’s marriage to K.T. was voided or annulled, thus the recognition of such child as the child of the veteran for benefit purposes is prohibited. See 38 U.S.C. § 103(e); see also 38 C.F.R. § 3.55(b)(1)-(2). Therefore, based on the April 2019 SSA letter and the lay statements of A.S. and K.T. in the SSA records, and as indicated in the private treatment records, the Board finds that A.S. is married. Accordingly, the question of whether she was actually helpless as of her 18th birthday is moot. The claim is denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 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.