Citation Nr: 21015440 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 11-01 892 DATE: March 17, 2021 ORDER Entitlement to recognition of A.G. as the dependent 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 evidence of record does not demonstrate that A.G., the Veteran’s now-adult son, was permanently incapable of self-support prior to attaining the age of 18. CONCLUSION OF LAW The criteria for recognition of A.G. as the dependent child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 are not met. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.315, 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to February 1976 and from December 1980 to October 2000. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran’s claims file currently resides with the San Juan, the Commonwealth of Puerto Rico RO. In July 2018, the Board issued a decision which included a denial of recognition of A.G. as the dependent child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In June 2019, the Veteran and the Secretary filed a Joint Motion for Remand (JMR) requesting that the Court vacate and remand the Board’s July 2018 decision. The Court granted the JMR later in June 2019. Thereafter, the Veteran’s dependency issue returned to the Board and, in December 2019, the Board remanded it to the Agency of Original Jurisdiction (AOJ) for additional development. Specifically, in the December 2019 remand, the Board requested that the AOJ attempt to obtain: (1) records held by the Social Security Administration (SSA) regarding any claim filed by, or on behalf, of A.G. for SSA disability benefits, and (2) any federally-held treatment records, including treatment at Brooke Army Medical Center and William Beaumont Army Medical Center, related to treatment A.G. may have received at military medical facilities while the Veteran was on active duty. Following the December 2019 remand, records from SSA regarding A.G. were associated with the Veteran’s claims file in September 2020. Relatedly, in February 2020, the AOJ requested treatment records from the Brooke Army Medical Center and William Beaumont Army Medical Center. In March 2020, the Brooke Army Medical Center informed VA that it did not possess any treatment records for A.G. from March [REDACTED], 1986 to the present. Comparatively, the William Beaumont Army Medical Center provided no response. Thusly, pursuant to 38 C.F.R. § 3.159(e), the AOJ informed the Veteran via letter later in March 2020 that it had determined that treatment records from the two identified military medical facilities were not available for review. In light of the above, the Board concludes that the AOJ substantially complied with the December 2019 remand directives, such that the Board may address the Veteran’s claim on its merits. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Recognition of A.G. as a Dependent Generally, if a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling, an additional amount of compensation may be payable for a spouse, child, and/or dependent parent. See 38 C.F.R. § 3.4(b). In this case, the Veteran has been in receipt of a disability rating of at least 50 percent since November 2000. As such, the Board finds the 30 percent eligibility threshold established in 38 C.F.R. § 3.4(b) to be satisfied in the instant case. Moving beyond this initial threshold determination, the Board notes that the Veteran is seeking dependent pay for his son A.G. The record indicates that A.G. was born on March [REDACTED], 1986 and turned 18 years old on March [REDACTED], 2004. See, e.g., October 2012 VA Form 21-686c. A child of a veteran generally does not qualify as a dependent for VA purposes once he or she attains 18 years of age. However, an adult child of a veteran may be considered a “child” for dependency purposes if he or she is unmarried and (1) was permanently incapable of self-support by reason of mental or physical defect before reaching age 18—a “helpless child;” or (2) is 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); 38 C.F.R. §§ 3.57, 3.315(a), 3.356. A.G. is currently not married, and the Veteran has contended that A.G. should be added to his award as a helpless child. 38 C.F.R. § 3.356 provides several factors to consider when determining whether a child under the age of 18 permanently was incapable for self-support. Those factors are as follows: (1) 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. (2) A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining 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 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. (3) It should be borne in mind that 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. (4) 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. Lastly, the Board notes that the Court 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 her 18th 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. In evaluating the merits of the Veteran’s claim, the Board acknowledges that, in the June 2019 JMR, the parties requested that the Board discuss, pursuant to 38 C.F.R. § 3.356, whether A.G. had a physical or mental defect that caused A.G. to lack employment such that employment should be considered a major factor in determining the result of the claim at issue. This discussion in the June 2019 JMR was based upon a finding that A.G. was not employed either before or after the age of 18. Since the June 2019 Court Order granting the JMR, records from SSA were associated in the claims file. Specifically, in records received by VA in September 2020, the Veteran reported to SSA that A.G. attempted to work in 2007 for a security company, but only lasted 3 days. Additionally, the Veteran stated that the A.G. worked at summer jobs in 2004 and 2005 and was also employed between April 15, 2009 to May 14, 2009. Further, in April 2014, A.G. reported to a mental health professional that he had once worked in a warehouse. Accordingly, as additional information associated with the Veteran’s claims file indicated that A.G. did have some brief periods of employment after the age of 18, a finding made pursuant to the last sentence in 38 C.F.R. § 3.356(b)(3) would no longer be appropriate in the instant case. Rather, the Board concludes that 38 C.F.R. § 3.356(b)(1) is applicable. As the record indicates that A.G. was employed after his 18th birthday, the Board makes a prima facie finding that A.G. was not incapable of self-support. Nevertheless, 38 C.F.R. § 3.356(b)(2) and (4), provide avenues to rebut prima facie findings made under 38 C.F.R. § 3.356(b)(1). Specifically, a prima facie finding may be rebutted if the evidence of record demonstrates that the employment at issue (A) was only casual, intermittent, a tryout, unsuccessful, or terminated after a short period by reason of disability; or (B) was only provided due to sympathetic or charitable considerations and which involve no actual or substantial rendition of services. In this case, the Board finds 38 C.F.R. § 3.356(b)(2) to be applicable as A.G.’s employment periods were brief in nature and ultimately unsuccessful. As such, the employment history is ultimately not a bar for recognition as a dependent for VA purposes. Moving beyond the specific issue of A.G.’s prior employment, the Board finds that he was diagnosed with a mental health disorder prior to his 18th birthday. Specifically, as recorded in an October 1997 treatment record, A.G. was referred to the William Beaumont Army Medical Center after teachers at his school noticed hyperactivity. A May 1999 treatment record from the Brooke Army Medical Center indicated that A.G. had a diagnosis of attention deficit hyperactivity disorder (ADHD) and had been on the medication Ritalin since the fall of 1998. Relatedly, in October 2020 correspondence, Dr. Kaplan—a private provider of psychiatric care—stated that A.G. had received a diagnosis of bipolar affective disorder, type II, at the age of 17. From this evidence of record, the Board concludes that A.G. experienced mental health disorders prior to his 18th birthday. Thus, the only outstanding requirement necessary for a grant of the Veteran’s appeal is whether the symptoms associated with A.G.’s diagnosed mental health disorders were significant enough to cause A.G. to permanently be incapable of self-support prior to his 18th birthday. In addressing this outstanding requirement, the Board acknowledges remarks made by the Veteran on a VA Form 21-686c received in October 2012. On this form, the Veteran stated that his son, A.G., had a double personality and experienced depression. Additionally, the Veteran stated that A.G. had never worked and received treatment for mental health problems since the age of 14. Relatedly, in December 2017, the Veteran remarked that his son was schizophrenic, had bipolar disorder, and had severe depression since he was a child. In addition to these statements by the Veteran, the Board notes that, in August 2016, the Veteran’s sister and W.L.—one of the Veteran’s neighbors—provided statements regarding their observations of A.G.’s behavior and capabilities. Firstly, the Veteran’s sister, Z.G.A., stated that A.G. was diagnosed with his first mental health disorder at the age of 6. Z.G.A. then indicated that A.G.’s symptoms got worse over time and noted that people had to come to A.G.’s school to pick him up once school was finished for the day. Z.G.A. then recounted that A.G. was hospitalized on three occasions for mental health treatment and that, ultimately, the Veteran retired from military service early in order to take care of his son. Similarly, W.L. first stated that she was neighbors with the Veteran and had known A.G. since he was a young child. W.L. recalled that A.G. was hospitalized in a “stabilizer room” when he was 16 years old and that A.G.’s health had deteriorated over time. Lastly, W.L. stated that A.G. did not respond to treatment in Puerto Rico and ultimately moved to live with his mother in Miami, Florida in order to undergo a psychological evaluation. While these lay statements from the Veteran, Z.G.A., and W.L. indicate that A.G. underwent psychiatric treatment prior to his 18th birthday, the Board finds that they do not necessarily demonstrate that A.G. was incapable of self-support prior to his 18th birthday on March [REDACTED], 2004. In a case such as A.G.’s, receiving treatment prior to the age of 18—including treatment through hospitalization—does not automatically confer helpless child status. In juxtaposition to the above-described lay statements, the Board notes that, in April 2012, A.G. told SSA that he did not receive any treatment for his mental health conditions between 2003 and 2007. Indeed, A.G. elaborated that, prior to 2007, he was aware of his mental health symptoms but was still functioning. A.G. then specified that his condition only became disabling after 2007. Similar to this April 2012 report to SSA, A.G. explained to private providers Dr. Robles in November 2011 and Dr. Guillen in April 2014 that his significant mental health symptoms began in 2007. The Board finds these statements by A.G. to mental health professionals to be highly probative. See Fed. R. Evid. 803(4) and accompanying Notes (noting statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth). Although A.G. may have experienced significant symptoms of his mental health disorders, the evidence of record is not at least equipoise in indicating that the onset of significant symptoms occurred prior to March [REDACTED], 2004. Rather, based upon A.G.’s own statements to SSA and mental health providers Dr. Robles and Dr. Guillen, the Board concludes that A.G.’s significant symptoms began in 2007—approximately 3 years after his 18th birthday. As the record does not conclusively demonstrate that A.G. was permanently incapable of self-support prior to his 18th birthday on March [REDACTED], 2004, the Board denies the Veteran’s claim. See 38 C.F.R. §§ 3.357, 3.315(a), 3.356. In denying the Veteran’s claim, the Board acknowledges November 2019 and October 2020 letters by Dr. Kaplan. In particular, in the October 2020 letter, Dr. Kaplan stated that A.G. has been permanently disabled and mentally incapacitated since the age of 17. However, the Board finds Dr. Kaplan’s October 2020 opinion to be less probative as it is unclear whether Dr. Kaplan had access to A.G.’s SSA records and Dr. Kaplan did not address: (1) SSA’s determination finding disability beginning in June 2007; (2) A.G.’s statement to SSA indicating incapacity beginning in 2007; and (3) reports from Dr. Robles and Dr. Guillen stating that A.G.’s significant symptoms began in 2007. Accordingly, Dr. Kaplan’s October 2020 letter is of limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.