Citation Nr: 22041003 Decision Date: 07/18/22 Archive Date: 07/18/22 DOCKET NO. 14-12 184A DATE: July 18, 2022 ORDER The request to reopen a previously denied claim of entitlement to recognition of the appellant as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is granted. Entitlement to recognition of the appellant as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is denied. Entitlement to service connection for the cause of the Veteran's death is dismissed. FINDINGS OF FACT 1. The RO denied the Veteran's claim of dependency for the appellant in a July 27, 2005, rating decision. The notice of this decision and his appellate rights were mailed to the Veteran's last known address, but no notice of disagreement or additional evidence was submitted within the appeal period of the decision. 2. Since the July 27, 2005, rating decision, new and material evidence has been received. 3. The appellant is the Veteran's biological child and was born in May 1978. 4. Despite the psychiatric disabilities present at the time of his attainment of age 18, the evidence of record indicates the appellant has not been permanently precluded from being able to support himself financially prior to attaining the age of 18. 5. The appellant does not meet the criteria of eligibility as the Veteran's surviving child. CONCLUSIONS OF LAW 1. The July 27, 2015 rating decision that denied the Veteran's claim for entitlement to recognition of the appellant as the helpless child of the Veteran on the basis of permanent incapacity for self-support is final. 38 U.S.C. § 7105(c) (2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). 2. The criteria to reopen the dependency claim for the appellant are met. U.S.C. § 5107; 38 C.F.R. § 3.156 (a). 3. The criteria for recognition of the appellant as the Veteran's "helpless child" on the basis of permanent incapacity for self-support prior to attaining the age of 18 are not met. 38 U.S.C. §§ 101 (4)(A), 5107; 38 C.F.R. §§ 3.57, 3.356. 4. The claim for DIC benefits under 38 U.S.C. § 1310 is moot. 38 U.S.C. §§ 101(4)(A), 1310; 38 C.F.R. §§ 3.57, 3.356. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to June 1970. Unfortunately, he died in October 2010. The appellant is seeking recognition as the helpless child of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Pension Management Center (PMC)'s rating decision issued in June 2011. The Board previously remanded the issue for further development in January 2022. The case has now been returned to the Board for appellate review. As noted in the January 2022 Board remand, in November 2010, the appellant executed a power of attorney appointing the Oregon Department of Veterans Affairs as his representative for all VA claims. However, in an April 2019 letter, the Oregon Department of Veterans Affairs withdrew form this representation appointment. The Board found that the Oregon Department of Veterans Affairs properly revoked the representation appointment under 38 C.F.R. § 14.631(c). Since then, the appellant has not filed a VA form 21-22 or VA Form 21-22a designating another individual or accredited service organization as his representative. Therefore, he proceeds with the appeal pro se. As the last preliminary matter, the appellant did not appear, provide good cause for failing to appear, or request rescheduling, of a hearing before a member of the Board in September 2021. A review of the claims file reveals that several correspondences, including the July 2021 hearing notice, were returned as undeliverable to the appellant's current address of record. The Board has taken appropriate steps to clarify the claimant's address. There was no response to the prior January 2022 Board remand. Ultimately, it is the responsibility of the claimant to notify VA of a change of address. Accordingly, absent good cause for his failure to report to the hearing, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). 1. The request to reopen a previously denied claim of entitlement to recognition of the appellant as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 The Veteran's claim for entitlement to recognition of the appellant as the helpless child of the Veteran on the basis of permanent incapacity for self-support was denied in a July 27, 2005 rating decision. The Veteran was provided notice of the decision in an August 23, 2005, letter sent to his last known address, which included notice of his procedural and appellate rights. The Veteran did not file a Notice of Disagreement challenging this determination, nor was additional evidence received within one year of the August 23, 2005, notice letter. The July 27, 2005, rating decision became final. 38 U.S.C. § 7105 (c) (2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). The evidence received since the July 2005 decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, an October 2010 letter from Social Security Administration (SSA) to the appellant, reflecting a primary disability diagnosis of personality disorder with the date of onset in February 1995. This new evidence addresses the reason for the previous denial; that is, confirmation of dependency, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 2. Recognition of the appellant as the Veteran's child, on the basis of permanent incapacity for self-support prior to attaining age 18 Subsequent to the death of the Veteran in October 2010, the appellant filed a Dependency and Indemnity Compensation (DIC) claim as a surviving child of the Veteran in November 2010. Eligibility for DIC benefits is a threshold matter that must be established prior to adjudicating any DIC claim on the merits. As a threshold matter, in order to be considered a "surviving child" a claimant must be unmarried. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57(a). In addition to being unmarried, a claimant must also be one of the following: (1) under 18 years of age; or (2) between the ages of 18 and 23 and pursing a course of instruction at an education institution approved by VA; or (3) permanently incapable of self-support prior to reaching 18 years of age. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57(a). The sole question is whether the child is permanently incapable of self-support by reason of physical or mental defects. 38 C.F.R. § 3.356(b). Here, the evidence indicates that the appellant was married sometime around 2000 or 2001, as documented in a February 2003 psycho-educational evaluation by Dr. P.M. Moreover, A February 2009 psychodiagnostic evaluation by Dr. P.S. also documents the appellant's report of 14 years of marriage, and a February 2004 intellectual assessment by Dr. L.P. indicates that the appellant reported being married for just one year although he had been with his wife for a number of years. As noted above, marriage is a bar to eligibility as a child. However, no legal document has been associated with the claims file in order to establish the marital status of the appellant. Therefore, the Board considers the appellant's claim on its merits as to whether the appellant is permanently incapable of self-support by reason of physical or mental defects prior to reaching the age of 18. Various factors are for consideration in determining whether a child is a "helpless child." 38 C.F.R. § 3.356. 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). 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 consideration as to 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. 38 C.F.R. § 3.356 (b)(3). 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. 38 C.F.R. § 3.356 (b)(4). 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 evidence of record establishes that the appellant had learning disorder and was placed in special education until he dropped out of school just before he finished the 9th grade. A February 2003 psychoeducational evaluation shows that he was diagnosed with reading disorder, disorder of written expression, and attention-deficit/hyperactivity disorder; the evaluator noted that the appellant was entitled to accommodations under the Americans with Disabilities Act (ADA) for learning disabilities in reading and writing. The evaluator indicated that it was possible for the appellant to take tests such as GED with accommodations and suggested multiple ways accommodations and support could be made to assist the appellant overcome his difficulties from his disabilities. Moreover, the evidence indicates that the appellant worked as a forklift driver, roofer, house painter, and carrying bricks and that he worked as a laborer until he injured his hand at work. See February 2003 psychoeducational evaluation; February 2005 intellectual assessment. The February 2005 intellectual assessment documents the appellant report that he had received Social Security benefits in the past for his ADD and literary problems but were discontinued due to incarceration. The February 2005 evaluator noted that the appellant never had access to appropriate medication and behavioral training to manage his intermittent explosive disorder. The appellant filed a claim with SSA for personality disorder in December 2008. A mental residual functional capacity assessment was conducted in conjunction with the claim in March 2009. The evaluator found markedly limited capacity in some of the categories in sustained concentration and persistence and social interaction; however, the assessment indicates that the appellant could work in ceratin settings such as isolated environment, with a flexible schedule. He was diagnosed with organic mental disorder, affective disorders, and personality disorders, as well as learning disorders for reading, spelling, and arithmetic by history. The December 2008 SSA disability report contains a remark that the appellant had a T16 medical allowance as of March 2005, but the benefit was discontinued due to incarceration and the new claim was taken since the old record was terminated in January 2008. A February 2009 psychodiagnosic evaluation by Dr. P.S. documents that the appellant has a truck and a shop in which he can work on the truck and that his mother assigns him chores such as taking out the trash and doing dishes. Moreover, the appellant reported that he works on bikes with his brother. He indicated that he liked to fish and has a driver's license, though he doesn't drive due to lack of insurance. Based on the evidence of record, the Board finds that prior to reaching the age of 18, the appellant had learning disorder and some manifestation of other psychiatric disorders such as personality disorder and ADHD, which, however, were and could be accommodated by law as indicated by the specialist in the psychological field. In this case, the appellant quit his school and did not continue to avail himself of support and accommodations such as continuing special education. Moreover, despite the difficulties caused by the psychiatric disability and award of benefits from SSA for his psychiatric disability, the weight of the evidence is for finding that he had physical capacity to work prior to reaching the age 18, as evidenced by his later work history and activity interests and skills in daily life such as possessing a driver's license, working on a truck and bikes, or carrying out chores such as taking out trashes and doing dishes. In this case, the weight of the evidence is for finding that the psychiatric disability that he had prior to reaching the age of 18 did not prevent him from securing and following gainful employment or training therefor that utilizes physical labor such as driving vehicles, working in construction, working on chores externalized from households, or repairing cars, prior to attaining the age of 18. The appellant consistently maintains that his learning disability and other psychiatric disability, which he indicates he was born with, caused difficulties in his life, particularly his ability to work. However, viewed as a whole, the Board finds that various medical evaluations represent the most probative of the competence evidence of record regarding the question of whether the appellant was permanently incapable of self-support at the time of his eighteenth birthday. As such, the Board finds that the clear weight of the evidence is against the claim, and it must be denied. In making this determination, the Board recognizes that SSA has come to the opposite conclusion. But the SSA decision was made under its statues and regulations, different from VA's. Only VA's statutes, regulations, and applicable caselaw control the Board's determinations on this issue. Although they provide relevant and helpful information, SSA decisions are not binding on VA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA and SSA decisions are not binding on VA). For the reasons explained above, those VA-specific criteria have not been met. 3. Service connection for the cause of death When a veteran dies, his or her surviving child may be eligible to VA death benefits, to include DIC benefits, death compensation and death pension. See 38U.S.C. §§1121, 1310, 1313, 1542; 38C.F.R. §3.50(a). Here, the appellant's claim for entitlement to service connection for the cause of death arises under 38 U.S.C. § 1310. As determined above, the appellant does not meet the criteria of eligibility as his surviving child under 38 U.S.C. § 101(4) and 38 C.F.R. §§ 3.57(a), 3.356(b). Accordingly, the appellant's claim must be dismissed as a matter of law. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor, 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.