Citation Nr: 22036734 Decision Date: 06/27/22 Archive Date: 06/27/22 DOCKET NO. 14-15 032 DATE: June 27, 2022 REMANDED Entitlement to recognition 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 on active duty in the United States Marine Corps from October 1972 to September 1985. He died in July 2007. The appellant is his adult son. This matter comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appealed that decision to the Board and appeared and testified before the undersigned Veterans Law Judge at a hearing conducted in December 2021. A transcript of the hearing is included in the claims file. Entitlement to recognition as the Veteran's child on the basis of permanent incapacity for self-support is remanded. The appellant seeks recognition as the Veteran's child, as that term is defined by VA's governing statutes and regulations, for the purposes of survivor benefits. 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). The appellant is seeking recognition as the Veteran's child only on the basis of permanent incapacity for self-support. 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). The "focus of analysis must be on the [child's] condition at the time of his or her 18th birthday." Dobson v. Brown, 4 Vet. App. 443, 445 (1993). Accordingly, the child's condition subsequent to his or her 18th birthday is not of concern. If, however, the child was permanently incapable of self-support as of his or her 18th birthday, then evidence of the subsequent condition becomes relevant for determining whether there is improvement sufficient to render the child capable of self-support. If the child is shown to be capable of self-support at 18, VA is not required to proceed further. Dobson, 4 Vet. App. at 445. The Board's review of the claims file indicates there are potentially extensive relevant private treatment records and it not clear that VA has sufficiently satisfied its duty to assist the appellant in developing his claim in attempting to obtain and consider those records. While the appellant was able to submit isolated treatment records, they do not appear to be complete. He submitted an October 2021 from Eastern Carolina Health Resources and Dr. L.H. in which the examining clinician reported testing conducted on the appellant in August 2017. No such test results or examination reports from this provider from that time are included in the claims file. Notably, August 2017 was only three months after the appellant attained age 18, which is the starting point for the Board's analysis of whether the appellant can be recognized as the Veteran's child. The appellant later submitted in October 2013 a detailed breakdown of the health care that he had received, to include dating back to 2005 when the appellant was still a minor from Dr. L.H. VA initially attempted to obtain these records in May 2012. However, it determined that it did not have a correct address for this provider and sought these records at a new address in October 2013. No follow-up request to this provider is of record. Considering these records relate to the critical period leading up to the appellant's 18th birthday, the Board finds that additional reasonable attempts should be made to obtain and consider those records. Upon remand, VA should also obtain records from the other psychiatric treatment providers that the appellant identified in his October 2013 document, to include Pitt Memorial Hospital, ECU School of Medicine Clinic, Psychological/Therapeutic Resources, LLC, Living Well Center, Act Medical Group, PA, Lifescapes Counseling, Craven Regional Medical Center, Dixon Social Interactive Services, and Dr. M.K.H. While the May 2007 date is the starting point of the Board's analysis, subsequent medical, educational, and work-related records are potentially relevant to the appellant's claim. In that regard, the Veteran submitted an April 2014 statement from New Dimension Group indicating that provider had treated him since November 2013. A statement from October 2019 from Pathways also documented additional treatment from that facility. Upon remand, VA should seek authorization and make reasonable attempts to obtain those records. In addition to these private treatment records that are potentially relevant, the Board also finds that additional federal records are also potentially relevant to the appellant's claim. He submitted a September 2010 letter from the Social Security Administration (SSA) that indicates he had been granted disability benefits from that agency. A remand is required to obtain all available evidence relating to that determination. Finally, the Board notes that the record contains an isolated reference to the Veteran's receipt of Chapter 35 educational benefits beginning January 2011. Upon remand, VA should ensure that all of the appellant's VA educational records are included in the claims file. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Eastern Carolina Health Resources, Dr. L.H., Pitt Memorial Hospital, ECU School of Medicine Clinic, Psychological/Therapeutic Resources, LLC, Living Well Center, Act Medical Group, PA, Lifescapes Counseling, Craven Regional Medical Center, Dixon Social Interactive Services, and Dr. M.K.H, New Dimension Group, and Pathways. Make two requests for the authorized records from each authorized provider, unless it is clear after the first request that a second request would be futile. 2. Obtain all of the appellant's Chapter 35 VA educational benefit records and associate them with the claims file. 3. Obtain the appellant's federal records from SSA. Document all requests for information as well as all responses in the claims file. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS 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.