Citation Nr: 21032436 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-39 133 DATE: May 27, 2021 ORDER Entitlement to service connection for bilateral trigger finger is dismissed. Entitlement to service connection for headaches, to include as due to an undiagnosed illness, is dismissed. Entitlement to service connection for heel spurs is dismissed. Entitlement to service connection for high blood pressure is dismissed. Entitlement to service connection for lower back pain is dismissed. Entitlement to service connection for plantar fasciitis is dismissed. Entitlement to service connection for tinnitus is dismissed. Entitlement to recognition of D.M. as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years is granted. FINDINGS OF FACT 1. In May 2021, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal the issues of entitlement to service connection for bilateral trigger finger, headaches (to include as due to an undiagnosed illness), heel spurs, high blood pressure, lower back pain, plantar fasciitis, and tinnitus. 2. The evidence is at least evenly balanced as to whether, at the time of his 18th birthday, D.M. had a mental defect rendering him permanently incapable of self-support. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran, as to the issues of entitlement to service connection for bilateral trigger finger, headaches (to include as due to an undiagnosed illness), heel spurs, high blood pressure, lower back pain, plantar fasciitis, and tinnitus, are met. 38 U.S.C. § 7105 (d); 38 C.F.R. § 19.55. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for recognition of D.M. as a child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 have been met. 38 U.S.C. § 101 (4); 38 C.F.R. §§ 3.57, 3.356. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2003 to September 2005 and September 2006 to March 2008. He had additional service with the Army Reserve, to include a period of active duty for training from August 1988 to November 1988. His awards include the Army Commendation Medal. These matters come before the Board of Veterans' Appeals (Board) from December 2014 and February 2017 rating decisions. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a May 2021 hearing. A transcript of the hearing has not yet been associated with the claims file. However, in light of the fact that the Veteran has withdrawn his appeal with respect to the service connection matters listed above, the fact that the Board is granting the claim for recognition of D.M. as a helpless child of the Veteran on the basis of permanent incapacity for self-support (thus reflecting a full grant of the benefit sought), and the fact that there is no information in the hearing transcript that will affect the decision herein, the transcript is not necessary at this time. I. Withdrawal of Appeal The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved in the appeal and may be made by the Veteran or the Veteran's authorized representative. 38 C.F.R. § 19.55(a). Unlike 38 C.F.R. § 20.204, its predecessor regulation, 38 C.F.R. § 19.55 does not have a provision explicitly providing for withdrawal of an appeal on the record at a hearing. With regard to such oral withdrawals, "withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). A Board determination that a claimant withdrew his or her appeal must include a "finding regarding whether [the appellant] understood the consequences of withdrawing his claims." Acree v. O'Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). In this case, at the beginning of the May 2021 Board hearing, the undersigned VLJ asked the Veteran if he understood that if he withdrew his appeal, he could later change his mind and file a new claim but that he would have to start over from the beginning and if benefits were eventually awarded, they would not be awarded as far back as they would have had he not withdrawn the appeal. The Veteran indicated that he understood. Id. Thus, the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences. Moreover, even in the absence of explicit language allowing for withdrawal of an appeal on the record at a hearing, there is no prohibition against such withdrawal and in this case the Veteran and his representative expressed a desire to withdraw the appeal from the denial of the claims of service connection for bilateral trigger finger, headaches (to include as due to an undiagnosed illness), heel spurs, high blood pressure, lower back pain, plantar fasciitis, and tinnitus. Dismissal of the appeal, with respect to these matters, is therefore appropriate in these circumstances. II. Permanent Incapacity of D.M. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. 38 U.S.C. §§ 1115, 1134, 1135. In this case, the Veteran is service-connected for multiple disabilities and his combined disability rating is 60 percent, from February 10, 2014 through May 9, 2017, and 100 percent, from May 10, 2017. Thus, he has met the 30 percent threshold since February 10, 2014. In order to establish permanent incapacity of a child for self-support prior to attaining the age of 18 years, it must be shown that the child was permanently incapable of self-support by reason of mental or physical defect as of his 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 own efforts by reason of physical or mental defects - rating criteria applicable to disabled veterans are not controlling. 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. 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. Facts for consideration under 38 C.F.R. § 3.356 are: (1) The fact that the child is earning his or her own support is prima facie evidence that he is not incapable of self-support. Incapacity for self-support will not be considered to exist when the child by his own efforts is provided with sufficient income for his 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 condition was such that he 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. The "focus of analysis must be on the claimant's condition at the time of his 18th birthday." Dobson v. Brown, 4 Vet. App. 443, 445 (1993). For purposes of establishing helpless child status, if the child is shown to be capable of self-support at eighteen, VA is required to proceed no further. However, if a finding is made that the child was permanently incapable of self-support as of his 18th birthday, then, regardless of that finding, evidence of the child's continued incapacity is needed. In this case, a February 2014 "Veteran's Application for Compensation and/or Pension" form (VA Form 21-526), a September 2015 "Request for Approval of School Attendance" form (VA Form 21-674), and D.M.'s private treatment records reflect that he is the Veteran's biological child and was born in December 1991. Therefore, his 18th birthday was in December 2009. A September 2015 letter from a resident funds supervisor from a care facility for individuals with intellectual and developmental disabilities and D.M.'s treatment records from the facility reflect that he was admitted to the facility in February 1998 (i.e., when he was 7 years old) with diagnoses of severe mental retardation, fragile X syndrome, intermittent explosive disorder, attention deficit hyperactivity disorder (ADHD), severe tardive dyskinesia, and self-injurious behavior. He was temporarily transferred to another facility in November 2001, but was transferred back to the initial facility in July 2002 and had remained at that location since that time. Although dated after D.M.'s 18th birthday, a September 2017 personal care plan indicates that he was able to make simple decisions as related to his daily routine, but that he had low preferences and abilities for making decisions relative to his safety, health, and well-being and he required a guardian to advocate for him and make appropriate decisions to ensure his well-being. He was diagnosed as having intermittent explosive disorder (outbursts of anger and violence that are disproportionate to the situation at hand), ADHD (neurodevelopmental disorder with problems paying attention, excessive activity, and difficulty controlling behavior), moderate intellectual disabilities (moderately impaired intellectual and adaptive function), and fragile X syndrome (a genetic disorder including mild to moderate intellectual disability). In his January 2018 substantive appeal (VA Form 9), the Veteran reported that D.M. was born in December 1991 and that he was admitted to a 24-hour assisted living and supervisors facility in February 1998 when he was 7 years old. He required full-time supervision and assistance with completion of his instrumental activities of daily living and activities of daily living since that time, as he does not have the intellectual ability to perform these activities without such assistance. He functions intellectually as a 5-year-old, is unable to perform medicine management or money management, requires verbal cues and redirection to follow simple commands, and requires verbal cues to perform toileting adequately, obey rules, and respect others. He was temporarily in a special needs classroom, but was unable to remain in the class due to his explosive behavior and inability to retain information. He has never been employed or married, and there has never been any improvement in his condition. If anything, his condition has worsened as he ages, with more explosive behaviors requiring increased medicines and behavior management. He is unable to go on social outings because his behavior becomes explosive and he requires a significant amount of medication to control his behavior. He is only able to communicate at a 5 year old level and focuses on one thing throughout a conversation, plays games that are appropriate for a 5 year old, is only able to write his first name and identify basic colors, lacks appropriate eye contact during communication, and requires verbal cues to communicate. In light of the above evidence, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's son D.M. had severe mental and intellectual disability, permanent in nature, prior to the age of 18. While the medical evidence submitted by the Veteran primarily addresses D.M.'s disability in the years after his 18th birthday, the evidence reflects that he was admitted to a full time care facility due to severe intellectual and developmental disabilities at the age of 7, that he has remained at the facility in the years since that time, and that he has never been married or employed. The Veteran has reported that D.M.'s condition has remained constant, and has seemingly worsened, in the years since he was admitted to the facility, and that he continues to experience significant impairments in intellectual and cognitive functioning, requires full time assistance with his activities of daily living, and is unable to make decisions relative to his own safety, health, and well-being. (CONTINUED ON NEXT PAGE) Overall, upon reviewing the lay and medical evidence as a whole, the Board finds that the evidence is at least evenly balanced as to whether D.M.'s level of impairment was present prior to his 18th birthday. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to recognition of D.M. as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.