Citation Nr: 21008782 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-00 001 DATE: February 18, 2021 REMANDED Entitlement to recognition of the Veteran's son, E.F., as a "helpless child" on the basis of permanent incapacity for self-support prior to attaining the age of 18 is remanded. REASONS FOR REMAND The Veteran had active service from October 1975 to October 1976 and from October 1980 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) following a May 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge (VLJ) in December 2020. A transcript of that proceeding is associated with the record. The Board notes that the other claims discussed during the December 2020 hearing, including entitlement to service connection for disorders of the neck, left elbow, left wrist, right ankle, renal condition, residuals of a traumatic brain injury (TBI), pes planus, gastroesophageal reflux disease (GERD), and skin cancer, entitlement to increased ratings for asthma and right foot disabilities, and entitlement to earlier effective dates for arthritis of the left hand, left hip, left leg, left foot right shoulder, right hip, special monthly compensation, and propriety of withholding pay, will be addressed in a separate Board decision. Entitlement to recognition of the Veteran's son, E.F., as a "helpless child" on the basis of permanent incapacity for self-support prior to attaining the age of 18 is remanded. To establish entitlement to the benefit sought on the basis of being a helpless child, various factors under 38 C.F.R. § 3.356 are for consideration. 38 C.F.R. § 3.356. The United States Court of Appeals for Veterans Claims (Court or CAVC) has held that, in "helpless child" cases, the focus must be on the claimant's condition at the time of his or her 18th birthday. See Dobson v. Brown, 4 Vet. App. 443, 445 (1993). In other words, for purposes of initially establishing helpless child status, the claimant's condition subsequent to his or her18th birthday is not for consideration. If a finding is made that a claimant was permanently incapable of self-support as of his or her 18th birthday, however, then evidence of the claimant's subsequent condition becomes relevant for the second step of the analysis, that is, whether there is improvement sufficient to render the claimant capable of self-support. Id. If the claimant is shown to be capable of self-support at age 18, VA is required to proceed no further. Id. The record includes testimony and statements provided by the Veteran, who is a physician’s assistant in his civilian capacity. See December 2020 Board hearing transcript. While the medical evidence provided by the Veteran is duly acknowledged, the Board would be remiss to solely rely upon a claimant’s own affirmations in support as they have the potential for bias. See Macarubbo v. Gober, 10 Vet. App. 388 (1997). Significantly, the Board notes that the Veteran’s statements fail to address important concerns identified in E.F.’s medical record, such as his polysubstance abuse history and impact of physical disabilities which occurred after he turned eighteen years old. An example can be seen when comparing a May 2013 VA form 21-4138 (“Due to his chronic history of bipolar disorder since age 17 as well as chronic depressive mood and ADHD disorders”) with a January 2014 Garden State Disability Associates evaluation (“residuals of decompensated right knee compromised by prior history of motor vehicle trauma (05/05/06)… past difficulties with polysubstance dependencies.”) As such, this issue is remanded for the necessary development and opinion to determine whether the Veteran's child E.F. is indeed a "helpless child" by pertinent law and regulation. Additionally, the Veteran testified as to E.F. having been denied Social Security Administration (SSA) disability benefits. As such records may be pertinent to the present claim, E.F.'s complete SSA records, if available, should be obtained and associated with the claims file, to include any rulings following a vacatur by the United States District Court of New Jersey. See December 2020 Board hearing transcript (“the issue has since been considered by the district court, the decision against disability benefits vacated, and remand being made. There at present is no decision from the --the Social Security Administration”); see also Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). With authorization, any SSA earnings records for E.F. should also be requested. Clarification is needed with respect to his earnings as the record indicates that E.F. worked on a semi-regular basis prior to a 2012 workplace injury. See i.e. July 2011 Sentara Norfolk General Hospital (“he finished high school and 42 college credits but stopped due to drugs…currently working as an electrician but has had many jobs in the past.”) Lastly, the universe of documents associated with the file comprising the medical record of E.F. is relatively small and does not include such materials as his psychiatric in-patient admissions and psychiatric care prior to attaining the age of 18. See i.e. June 2013 Cedar Hill Medical Center evaluation (“around eleven years of age, parents divorced, and he was hospitalized for the first time…hospitalized again in 2008, 2009, 2010, and 2011…received outpatient treatment with Dr. Lifrak since the year 2000 and stopped seeing her about two months ago…currently not receiving therapy.”) Thus, on remand additional attempts to assist the Veteran with obtaining more relevant records pertaining to E.F.’s disability picture prior to attaining 18 years of age should be undertaken. The matter is REMANDED for the following actions: 1. Contact the Veteran to obtain any pertinent medical records not previously associated with the claims file for E.F. as to the current medical condition and nature of the disabilities of E.F. that render him a "helpless child,” to include materials from Dr. Lifrak and any treating psychologists prior to his attaining the age of 18, to specifically include all inpatient psychiatric admissions. All attempts to procure the records, including those that are unsuccessful, should be noted and associated with the claims file. 2. Obtain and associate with the file E.F.’s complete records from the Social Security Administration related to any claim for SSA benefits (SSI or SSD), including any SSA administrative decision(s) (favorable or unfavorable), and including records reflecting the earliest application for benefits administered by SSA. If such records are unavailable, a negative response must be obtained. Upon authorization, request E.F.'s official earnings record from SSA, including earnings prior to and after age 18. 2. Once the above are complete, schedule the dependent child E.F. for the appropriate medical examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by a qualified medical professional to determine the nature and severity of the child's disabilities, and provide an opinion as to whether it is at least likely as not (50 percent probability or greater) that permanent incapacity existed on or before the dependent child E.F.'s eighteenth birthday of August 8, 2002. In formulating their opinion the examiner is directed to consider the lay statements and testimony in support of the claim provided by the Veteran in his capacity as a PA and any other medical opinions associated with the claims file including all medical opinions related to E.F.’s prior disability claims and in-patient psychiatric admissions. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.