Citation Nr: 21025735 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-50 566 DATE: April 28, 2021 REMANDED Entitlement to recognition of C.B. as the Veteran’s “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, who is the appellant, served on active duty from September 1990 to September 1994. C.B. is the Veteran’s adult son. The claim is on appeal from a September 2014 Regional Office (RO) rating decision of the Department of Veterans Affairs (VA) that denied the claim. The NOD was received in September 2015. The RO issued the Statement of the Case (SOC) in February 2017, and the VA Form 9 was received in March 2017. The issues of entitlement to a higher rating for right ankle, left ankle, and right knee disabilities, and the claim for a total disability rating based on individual unemployability will be addressed in a separate Board decision. The Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) on January 7, 2021, and a hearing transcript is associated with the record. The VLJ indicated that the record would be held open for 90 days. The 90 days elapsed on April 7, 2021, and the Veteran has not submitted records pertaining to the helpless child claim. The Veteran contends that C.B. is rendered permanently incapable of self-support prior to his 18th birthday, and hence is entitled to helpless child status due to his Autism diagnosed at the age of 3. The record reflects that the Veteran’s son C.B. was born in April 1994, and therefore his18th birthday was in April 2012. In order to establish such entitlement, it must be shown that the child was permanently incapable of self-support by reason of mental or physical defect as of his or her 18th birthday. 38 C.F.R. § 3.356(a). Rating determinations regarding helpless child status are 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. Id. A “child” for VA benefits purposes must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before 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)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.356. 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). 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 incapability of self-support otherwise established. See 38 C.F.R. § 3.356(b)(2). However, 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. A November 1996 private Developmental Evaluation documented communication and behavioral issues exhibited by C.B. when he was 33 months old. C.B. exhibited aggressive behavior and self-abusive behavior. C.B.’s overall score on the Child Autism Rating Scale was just above the normal range for young children, which placed his score in the range similar to young children with mild symptoms of Autism. An April 2002 letter from C.B.’s treating physician noted that C.B. was considered 50 percent disabled or more when C.B. was 9 years old. 2003 school evaluations documented C.B. exhibited symptoms of mild autism and he still showed difficulty with social language and interaction. An April 2010 Individualized Education Plan (IEP) when C.B. was sixteen years old documented that C.B. doing was doing well in school and that he gets frustrated when overwhelmed, connects well with other students for the most part, he likes to work with his hands, gets frustrated with extensive reading, and that he struggled with reading comprehension and can get upset when he is not fully aware of what is going on. It was noted that after graduation, C.B. planned to work in his father’s business in welding. During the January 2021 Board hearing, the Veteran reported that C.B. became disabled at age 9 years old. He reported that C.B. has some physical abilities, can work, and do certain things, but he does not have the mental ability to live alone or manage regular and mundane things in life. The Veteran reported that he has to remind C.B. to take showers, and although he completes a task if he tells him to, C.B. does not have social skills. He contends that at age 26 years old, C.B. is unable to function despite doing a job and that C.B. would not be able to support himself without the Veteran and his wife. Although the records explain C.B.’s history of participation in IEP and diagnosis of mild autism since age 3 years old, it does not adequately address whether C.B. became permanently incapable of self-support by reason of a mental or physical disability prior to attaining the age of 18. Accordingly, the Board finds that a remand for a VA medical opinion is necessary to address whether C.B. became permanently incapable of self-support by reason of a mental or physical disability prior to attaining the age of 18. See Chotta v. Peake, 22 Vet. App. 80, 84-85 (2008) (VA’s duty to assist may require it to obtain a retrospective medical opinion if such an opinion “is necessary to make a decision on the claim.”). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, C.B.’s work and income history are unclear and thus the Board cannot determine whether C.B. had casual or gainful employment. Given that the Veteran indicated that C.B. has worked during the January 2021 Board hearing, C.B.’s employment and income history should be requested on remand. The matter is REMANDED for the following action: 1. Request outstanding information regarding employment activities and income information of C.B. and his activities in the home and community, to include prior to his 18 birthday and thereafter. 2. Arrange to obtain a VA medical opinion by an appropriate physician, preferably a psychiatrist. The physician should clearly identify all of C.B.’s disability(ies), to include Autism, and render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or higher probability) that, as a result of the disability, C.B. became permanently incapable of self-support before reaching the age of 18 years (in April 2012). The physician should consider the 1996 Developmental Evaluation (received February 3, 2017), school reports from 2003 to 2010 (received on September 1, 2015), the April 2002 private medical letter that states C.B. was disabled at 50 percent or more since he was 9 years old (received February 3, 2017), as well as all other evidence of record, to include lay statements (see January 2021 Board hearing transcript). In so doing, the physician should state (if possible) what employment limitations would have existed at age 18, and what limitations are currently shown. If the examiner determines that C.B. was not permanently incapable of self-support before reaching the age of 18 years, the physician should identify the evidence in support of such a finding. The physician is advised that C.B. and the Veteran are competent to report C.B.’s symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the physician rejects their reports, the physician must provide a reason for doing so. Complete, clearly stated rationale for the conclusions reached must be provided. L. B. CRYAN 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.