Citation Nr: 21022014 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-11 003A DATE: April 14, 2021 ORDER Basic eligibility for VA improved death pension benefits, to include the issue of whether the Appellant may be considered the helpless child of the Veteran is denied. FINDING OF FACT The evidence of record does not demonstrate that the Appellant was permanently incapable of self-support prior to the age of 18. CONCLUSION OF LAW The criteria for entitlement to improved death pension benefits, to include the issue of whether the Appellant is entitled to recognition as a “child” of the Veteran have not been met. 38 U.S.C. §§ 101, 1310, 1318, 1542; 38 C.F.R. §§ 3.3, 3.22, 3.24, 3.57. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from September 1950 through September 1952. The Appellant is the Veteran’s adult son. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Appellant was afforded a video conference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Appellant toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. Pursuant to a joint motion for remand (JMR) filed by VA and the Appellant, in November 2019, the Court of Appeals for Veterans Claims (CAVC) vacated the Board’s February 2019 decision and remanded it to the Board for compliance with its instructions. Pursuant to the JMR, the Board remanded the matter in May 2020 to obtain a November 2012 Social Security Administration (SSA) hearing transcript including testimony from Dr. Fuess, a physician, and Mr. Fannin, a vocational expert, related to SSA disability benefits determination. In August 2020 and October 2020, the RO again requested SSA records from the SSA, to include the SSA hearing transcript. The SSA sent all records relied upon concerning the SSA disability claim, however, the requested November 2012 SSA transcript was not in the provided SSA records. In a November 2020 letter sent to the Appellant, the RO advised that the November 2012 SSA hearing transcript could not be located and is unavailable. Nonetheless, excerpts from Dr. Fuess’s and Mr. Fannin’s opinions are in the SSA records, as discussed below. 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). Entitlement to improved death pension benefits, to include the issue of whether the Appellant is entitled to recognition as a “child” of the Veteran The child of a Veteran may be entitled to receive DIC compensation. 38 U.S.C. §§ 1310, 1318; 38 C.F.R. § 3.22. Regarding nonservice-connected death pension benefits, a surviving child is entitled to such benefits if the surviving child’s income or the income of the surviving child and any person with whom the child is residing who is legally responsible for the child’s support does not exceed certain limits. 38 U.S.C. § 1542; 38 C.F.R. § 3.3(b)(4). The term “child” is expressly defined in 38 U.S.C. § 101(4)(A) as a person who is unmarried and (1) under the age of 18; or (2) became permanently incapable of self-support before the age of 18; or (3) under the age of 23 and pursuing a course of instruction at an approved educational institution. See 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57; Burris v. Principi, 15 Vet. App. 348, 352-53 (2001); Nolan v. Nicholson, 20 Vet. App. 340 (2006). The Veteran contends that he was under the care of his father, the Veteran, until his death in 1983 and since then he has been assisted by friends and family members. He states he has been disabled since birth and has not been able to fully take care of himself his entire life. In a March 2020 informal hearing presentation, the Appellant, through his representative, contends the Appellant suffers from a pre-natal brain injury, mental retardation, and psychological issues. The representative contends that the Appellant’s mother had German measles during the vulnerable period in pregnancy and the psychosis appears to have an onset in childhood from his beliefs and violent tantrums. The representative states the Appellant appears to have never held substantially gainful employment. While there are reports that the Appellant worked well with his mother’s executor, the representative claims that he was not that executor and that although he bought a used car by himself, he was unable to pay for it and thus this sounds more like his negotiating skills were insufficient and that he was taken advantage of. The representative contends that practical judgment is medically noted from childhood to the present and low IQ scores during the school years that were not caveated. The representative stated that the Appellant did not complete two years in college and that he was still in a private special needs high school in 1976 because his needs were beyond what Miami-Dade County schools could cope with. The representative stated that the Appellant has neither a high school diploma nor a GED and the school records document many of the behavioral problems, such as violent uncontrolled outbursts. The representative claimed that poor judgment and low threshold for physically acting out due to frustration is still present and that there are clear indications of already discredited thinking in the school psychologist’s 1970 evaluation. The representative contends that the determination that the Appellant had an overprotective/dominant mother to the claimant facing gender or sexuality issues indicates there are professional competence issues with the 1970 opinion. The record shows that the Appellant was born on November [redacted], 1958. The Appellant reached the age of 18 in November 1976. The Appellant was placed in special education classes and diagnosed with organic mental disorder and mild mental retardation, prior to his 18th birthday. However, the fact that the Appellant was placed in special education classes and this diagnosis do not support a permanent inability of self-support prior to his 18th birthday because he was listed as having a full-scale IQ in the 65-70 range, demonstrated adequate adaptive functioning, and was nondependent for assistance with activities of daily living. Specifically, the Appellant could live independently, acquired a driver’s license, owned a car, maintained his own checking account, and managed all his financial affairs. Although the Veteran’s representative refutes these findings, the Appellant, himself specifically attested to these facts in a SSA January 2011 interview. Therefore, these facts weigh against a finding that the Appellant was permanently incapable of self-support prior to age 18. Further, SSA records show that the Appellant did not become disabled until December 29, 2010, at the age of 52. SSA found that prior to becoming disabled on December 29, 2010, the Appellant had the functional capacity to perform a full range of work at all exertional levels, except those requiring fast-paced, production-type work. The Board acknowledges the Appellant’s argument that his learning difficulties and temper tantrums during his childhood years have continued into adulthood and rendered him unable to work. Although the Board is not bound by determinations of the SSA, here, the SSA adjudicator relied on medical opinions provided by professionals who reviewed all evidence, to include the evaluations conducted during the Appellant’s childhood. Specifically, as noted in the SSA’s findings, Dr. Fuess concluded that the medical records showed the Appellant’s impairments were mild mental retardation and organic mental syndrome and he opined that the Appellant’s impairments did not meet or equal any SSA functional impairment listing before age 22 and he had mild limitation in activities of daily living and social functioning and moderate limitation in concentration, persistence, or pace; no episodes of decompensation. Dr. Fuess further indicated that the Appellant was capable of performing simple routine and repetitive tasks. The vocational expert concluded that prior to December 29, 2010, the Appellant was able to work successfully in several job fields, including as a contractor (the table of occupations was not entirely legible). As did the SSA, the Board finds the opinions are consistent with the medical evidence. Notably, the March 1973 psychological evaluation shows the Appellant’s academic deficiencies were due to frequent school changes and his mother’s unrealistic over-protection of him. A September 1975 psychological evaluation notes the Appellant was diagnosed with mild mental deficiency. The psychologist further opined the Appellant was capable of performing simple routine and repetitive tasks. The SSA records reflect the Veteran reported loading and unloading boxes from 1996 to 1997 at a warehouse, consisting of eight hours per day, three days per week. In an April 2006 private treatment record, the Appellant reported that he worked as an investor in Miami, Florida. In the SSA claim for disability benefits, the Appellant indicated that he stopped working in July 1997 because of his organic mental disorder and psychosis. Thus, the Appellant’s contention that his mental disorders rendered him incapable of self-support prior to age 18 is inconsistent with the statements made to the SSA for disability benefits. The Appellant submitted lay statements from multiple friends. One friend identified himself as the Appellant’s caretaker, who provides transportation for the Appellant and makes sure the Appellant eats and bathes daily. He also opined the Appellant has the mind of a child even though he looks like a man and that other family members haven taken advantage of the Appellant. Another friend indicated the Appellant has anxiety, stress, nervousness, and an extensive emotional disturbance since the death of his parents. She further indicated the Appellant has never been able to succeed in regular school programs, the Appellant needs counseling, she assisted the Appellant relocate into his new condominium, and she sometimes prepares simple meals for the Appellant on an as-needed basis. Although these friends have provided information regarding the Appellant’s mental state, they do not provide evidence to show the Appellant became permanently disabled prior to his 18th birthday. Although the Appellant had learning difficulties and behavioral issues in early childhood, the Appellant’s history of independent living, acquiring a driver’s license, owning a car, maintaining his own checking account, and managing all his financial affairs demonstrates that the Appellant was not rendered incapable of self-support prior to attaining the age of 18. In sum, the evidence does not support a finding of permanent incapacity for self-support prior to the age of 18. The Appellant was not dependent on others support due to his organic mental disorder and mild mental retardation. Therefore, the Appellant does not meet the requirements as a helpless child for VA purposes and he is not entitled to benefits, including improved death pension benefits, as a “child” of the Veteran. Vito A. Clementi 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.