Citation Nr: 21032536 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 11-31 892 DATE: May 27, 2021 REMANDED Entitlement to recognition of D.W. as the "helpless child" of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18 is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to accrued benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1963 to September 1965. He died in July 2001. D.W. is his adult daughter. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 decision of a Department of Veterans Affairs (VA) Regional Office. The Board previously remanded this matter in March 2016 to ask the appellant to identify and provide authorization for medical records particularly around her eighteenth birthday, to obtain records in the custody of the Social Security Administration (SSA), and to arrange for the appellant to attend a VA psychiatric examination. If recognition of D.W. as the Veteran's helpless child was granted, the Board then directed the agency of original jurisdiction to conduct further development regarding the cause of the Veteran's death and any potential accrued claim for benefits. The Board now finds that there has not been substantial compliance with the March 2016 remand directives and must remand the matter again for corrective action. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders) 1. Entitlement to recognition as the Veteran's "helpless child" The appellant seeks recognition as her late father's "child" for the purposes of eligibility for VA benefits. VA only recognizes certain unmarried individuals as a "child" for these purposes. To be considered a veteran's child, the individual in question must be unmarried and either must be 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). Where, as here, the child's age exceeds age 23, the Board must consider what permanent effects the child's physical or psychological conditions on his or her ability to support themselves before attaining the age of 18. 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 after the 18th birthday is not for consideration. If a finding is made that a claimant was permanently incapable of self-support as of the time of the 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 the March 2016 remand, the Board instructed the agency of original jurisdiction to obtain the appellant's records from the Social Security Administration (SSA) and explicitly asked that those records include "all disability determinations, application materials, and associated medical records." Unfortunately, it does not appear that SSA's responses to VA's request included all of the information that the Board's remand identified. The March 2016 remand directed the Agency of Original Jurisdiction to obtain the appellant's SSA records, "including all disability determinations, application materials, and associated medical records." VA received a portion of those records in June 2018. However, that assortment of documents does not include the actual disability determination that found the appellant to be disabled pursuant to SSA's rules and regulations. The file does include two disability determination and transmittal sheets from SSA, but those both state that the issue of disability was res judicata. They also include a regulation basis code of "S1," which is SSA's code for a denial of a claim on that basis. This information indicates SSA had previously considered and denied the appellant's claim. The Board also observes that those transmittal sheets reference a February 2011 disability examiner, but the medical opinion or examination report of that clinician does not appear in the documents received from SSA. Prior to the March 2016 remand, the record also included an April 2009 dismissal of a hearing request from an SSA Administrative Law Judge (ALJ). This evidence suggests that an ALJ had considered and made a decision on a claim the appellant made for SSA disability benefits. That dismissal also references a "Federal Reviewing Official's decision" from April 2007. No such decision was included in SSA's response to VA's request for the appellant's SSA records. As the SSA response appears incomplete, a remand is required to secure all of the SSA records requested in the March 2016 remand or to obtain a statement clarifying that any further records are not able to be obtained. 2. Entitlement to service connection for the cause of the Veteran's death and to accrued benefits. The other issues on appeal are dependent on the outcome of the determination of whether the appellant satisfies the criteria of being considered the Veteran's "child" on the basis of permanent incapacity for self-support prior to attaining age 18. As such, the Board finds that they must also be remanded to allow VA to satisfy its duty to assist the appellant in the development of her claim. The matters are REMANDED for the following action: 1. Make an additional request to SSA to obtain all disability determinations (to include ALJ decisions), applications for SSA disability benefits, and any underlying medical records or opinions relating to the appellant's claims, to include any medical examinations or opinions obtained to make such a determination such as the February 2011 DDS disability examiner. Document all requests for these records and include evidence of the requests in the claims file. If no additional records are available, include in the claims file a copy of the negative response to VA's request for those records. M. Tenner 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.