Citation Nr: 21029438 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-51 006 DATE: May 13, 2021 REMANDED Entitlement to recognition of W.C.S. as the Veteran's child, on the basis of permanent incapacity for self-support prior to attaining age 18, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from April 1985 to January 1987. W.C.S. is his adult son. This matter comes before the Board of Veterans' Appeals (Board) from a January 2016 decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appealed that decision and subsequently appeared and testified before the undersigned Veterans Law Judge at a virtual hearing conducted in January 2021. A transcript of the hearing is included in the claims file. In addition to the issue of recognition of W.C.S. as the Veteran's child several other issues have been certified to the Board. This issue is addressed in a separate due to it being an issue dependent on completely different law and facts. As such, the Board will issue a separate decision addressing those other issues on appeal. Entitlement to recognition of W.C.S. as the Veteran's child, on the basis of permanent incapacity for self-support prior to attaining age 18, is remanded. Any veteran who is entitled to disability compensation, and whose disability is rated 30 percent or higher, is entitled to additional compensation for dependents, including for a child. See 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). To be considered a "child" for these purposes, the individual in question must be unmarried and also 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). Various factors are for consideration in determining whether a child has become permanently incapable of self-support prior to attaining age 18. 38 C.F.R. § 3.356. The fact that a child is earning his or her own support is prima facie evidence that he or she is not incapable of self-support, and 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 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. 38 C.F.R. § 3.356(b)(2). Here, the record contains virtually no substantive evidence regarding W.C.S.'s level of functioning apart from the relatively brief testimony taken on the subject at the January 2021 Board hearing. However, the Veteran did testify that W.C.S. had received special education services in school. His representative also stated that, although benefits were not approved, the Social Security Administration (SSA) had considered a claim from W.C.S. for disability benefits. VA has a duty to obtain SSA records, provided they are relevant. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). While W.C.S. may have not met the specific criteria for a disabled individual under SSA's rules and regulations, he may potentially satisfy the definition of a "child" pursuant to VA's regulations and statutes. The underlying records that were considered in that SSA determination are likely relevant to the Board's current evaluation of W.C.S.'s level of functioning and his capacity for self-support. As such, a remand is required to make all reasonable attempts to obtain them. Upon remand, the Veteran should also be given the opportunity to identify and submit any special education records pertaining to W.C.S.'s schooling. This matter is REMANDED for the following actions: 1. With any necessary authorization from W.C.S., obtain the W.C.S.'s federal records from SSA. Document all requests for information as well as all responses in the claims file. (Continued on the next page) 2. With any necessary authorization from W.C.S., ask the Veteran to complete a VA Form 21-4142 for any educational institution W.C.S. attended that provided him special education services. Make two requests for the authorized records from any educational institution that is identified in any VA Form 21-4142, unless it is clear after the first request that a second request would be futile. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.