Citation Nr: 22048874
Decision Date: 08/26/22	Archive Date: 08/26/22

DOCKET NO. 18-47 623
DATE: August 26, 2022

ORDER

New and material evidence having been received, the appeal to reopen the claim of entitlement to helpless child benefits for J.B. on the basis of permanent incapacity for self-support before attaining the age of 18 is granted.

REMANDED

Entitlement to recognition of J.B. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is remanded.

FINDINGS OF FACT

1. A September 2010 rating decision denied the application to reopen the claim of entitlement to helpless child benefits; the appellant did not file a notice of disagreement (NOD), and no new and material evidence was received within one year of the rating decision.

2. The evidence associated with the claims file subsequent to the September 2010 rating decision is not cumulative, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim.

CONCLUSION OF LAW

Following the final rating decision in September 2010, new and material evidence has been received to reopen the claim of entitlement to helpless child benefits. 38 U.S.C. § 5108, 7105(c); 38 C.F.R. § 3.156(a), 20.1103.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from March 1973 to April 1975. The Veteran died in August 2000. The appellant is the Veteran's surviving spouse. J.B. is the Veteran's and the appellant's adult child. J.B.'s date of birth is in June 1986. Therefore, he turned 18 years old in June 2004.

This appeal comes to the Board of Veterans' Appeals (Board) from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The appellant provided testimony before the undersigned Veterans Law Judge in February 2022 and a hearing transcript is associated with the record.

In a February 2016 remand, the Board directed the RO to issue a statement of the case (SOC) for the issue of whether new and material evidence had been received for entitlement to helpless child benefits for the Veteran's son J.B. However, the August 2018 SOC did not address whether new and material evidence had been received for entitlement to helpless child benefits J.B., but rather addressed the claim on its merits. The Board finds that the RO implicitly found new and material evidence to readjudicate this issue on the merits. Notwithstanding it, the Board must determine whether reopening is warranted before addressing the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-240 (1995). Given that the Board has reopened the claim for helpless child benefits below, the appellant is not prejudiced in the Board proceeding with the appeal. 

1. New and material evidence having been received, the appeal to reopen the claim of entitlement to helpless child benefits for J.B. on the basis of permanent incapacity for self-support before attaining the age of 18 is granted. 

To reopen a service-connection claim, new and material evidence must be presented. See 38U.S.C. §5108. The Board determines whether it is proper to reopen a claim. See Jackson, supra.

Evidence is new if it was not previously submitted to agency decision makers. Evidence is material if, alone or with previous evidence of record, it (1) relates to an unestablished fact necessary to substantiate the claim, or (2) would at least trigger VA's duty to assist by providing a medical opinion. See 38C.F.R. §3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). New and material evidence cannot be cumulative nor redundant of the evidence of record at the time of the last final denial and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Regardless of any AOJ determination, the Board must address the question of whether new and material evidence to reopen previously claims has been received because the matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).

The appellant's claim for entitlement to helpless child benefits for her son J.B. was initially denied in an October 2008 rating decision. Subsequently, in a September 2010 rating decision, the RO declined to reopen the appellant's application to reopen the claim for entitlement to helpless child benefits for her son. The appellant was notified of these determinations, and she did not file a notice of disagreement within one year, nor was new and material evidence received within that one-year period. The rating decisions became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38C.F.R. §20.1103.

The appellant seeks to reopen the claim for entitlement to helpless child benefits for J.B. The RO declined to reopen the appellant's claim because the evidence submitted had already been considered and did not bear directly and substantially upon the issue of permanent incapacity for self-support of J.B. The RO also determined that the evidence did not show J.B. became permanently incapable of self-support prior to age 18 in June 2004. 

Since the September 2010 rating decision, the evidence includes the appellant's February 2022 testimony that J.B. was sexually assaulted when he was 13 years old while at school and that he became withdrawn since that time. She also reported that J.B. opened up about the assault to psychiatrist Dr. Freeman. In February 2022, the appellant submitted an April 2013 letter from Dr. Freeman in which the physician wrote that he treated J.B. since July 2009 and that he is permanently disabled for employment purposes due to chronic illnesses. A February 2022 private medical letter from Nurse Practitioner Danley indicated J.B. was seen in February 2022 and she attested to the fact that J.B. had a prior diagnosis of PTSD and depression before the age of 17. 

The Board finds that this evidence constitutes new and material evidence as it tends to support the assertion that J.B. was incapable of self-support prior to the age of 18, which was the basis for the previous denial of the claim. In this regard, the Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade, supra. Therefore, the Board finds that the evidence added to the record since the last final September 2010 denial of the application to reopen the claim for helpless child benefits constitutes new and material evidence, and that the criteria under 38 C.F.R. § 3.156(a) have been satisfied. Therefore, the claim of entitlement to helpless child benefits is reopened. 

REASONS FOR REMAND

2. Entitlement to recognition of J.B. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is remanded.

Although the current records show J.B. had a learning disability prior to his 18th birthday, the limited education records do not attest to whether he was permanently incapable of self-support through his own efforts by reason of physical or mental defects prior to his 18th birthday. Therefore, the Board finds that the remand of the claim to obtain outstanding relevant treatment records is warranted. As noted above, although Dr. Freeman and Nurse Practitioner Danley provided medical opinions, they did not opine as to whether J.B. was permanently incapable of self-support through his own efforts by reason of physical or mental defects prior to his 18th birthday. In addition, treatment records from Dr. Freeman and Nurse Danley have not been obtained. In February 2022, the appellant wrote that Dr. Freeman retired and that the new doctors no longer have J.B.'s records. However, a search on the internet appears to show that Dr. Freeman is still practicing and accepting new patients. Therefore, the RO should attempt to obtain these records on remand. 

The Board also notes that the appellant submitted numerous signed VA Forms 21-4142, Authorization for Release of Information, in 2011 and 2013 and requested that VA obtain these records. The providers included: Dr. Freeman, Crossbridge Behavioral Health, Dr. King and Dr. Gbenro, Baptist Medical Center South, Maxwell Air Force Base Children's Clinic, Dr. Knox, Behavioral Medicine, Dr. Taylor, Dr. Cox, and Dr. Stehl. As the RO has not obtained these records and some of these private medical records are in close proximity to J.B.'s 18th birthday, on remand the RO should request outstanding treatment records from these providers after obtaining authorization. 

The matter is REMANDED for the following action:

1. Ask the appellant's son J.B. to complete and return a VA Forms 21-4142, Authorization and Consent to Release Information, for treatment from the following physicians/facilities:

(a.) Dr. William Freeman (see March 2011 and July 2013 VA Form 21-4142); 

(b.) Crossbridge Behavioral Health (see March 2011 and July 2013 VA Form 21-4142);

(c.) Dr. King and Dr. Gbenro (see March 2011 VA Form 21-4142);

(d.) Behavioral Medicine (see March 2011 VA Form 21-4142);

(e.) Baptist Medical Center South (see March 2011 and July 2013 VA Form 21-4142);

(f.) Maxwell Air Force Base Children's Clinic (see July 2013 VA Form 21-4142, follow the procedures set forth in 38 C.F.R. § 3.159 regarding requests for records from Federal facilities. If such records are unavailable, a negative response must be obtained and associated with the claims file);

(g.) Dr. William Knox (see July 2013 VA Form 21-4142);

(h.) Dr. Bruce Taylor (see July 2013 VA Form 21-4142);

(i.) Dr. Harold Cox (see July 2013 VA Form 21-4142);

(j.) Dr. Richard Stehl (see July 2013 VA Form 21-4142);

(k.) As well as any other provider from any other periods that J.B. received treatment prior to when he turned 18 years old, which would have been in June 2004.

J.B. (and the appellant) are asked to cooperate in assisting VA with obtaining these records. 

Following the current procedures set forth in 38 C.F.R. § 3.159, all records should be obtained, and all records/responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

2. After all available evidence has been associated with the record, review the evidence, to include consideration of all evidence submitted by the appellant in February 2022 after the statement of the case was issued (the April 2013 letter from Dr. Freeman, the February 2022 letter from Nurse Practitioner Danley, and the appellant's lay statement), and determine if further development is warranted.

 

 

John R. Doolittle, II

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.