Citation Nr: 25004697 Decision Date: 04/07/25 Archive Date: 04/07/25 DOCKET NO. 16-34 841 DATE: April 7, 2025 ORDER Recognition of the appellant as the Veteran's surviving child for the purposes of eligibility to apply for VA Dependency and Indemnity Compensation (DIC) benefits is denied. FINDINGS OF FACT 1. The appellant, the child of the Veteran, filed her application for DIC benefits on September 1, 2015, at which time she was 60 years of age. 2. The appellant was not rendered permanently incapable of self-support prior to reaching the age of 18. CONCLUSION OF LAW The appellant may not be recognized as the surviving child of the Veteran for the purposes of eligibility to apply for DIC benefits. 38 U.S.C. §§ 101(4)(A), 5107; 38 C.F.R. §§ 3.1, 3.56, 3.57, 3.102, 3.315, 3.356. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1942 to February 1946. The Veteran died in December 1975, and the appellant seeks to establish that she is the surviving child of the Veteran for the purposes of establishing eligibility to apply for VA DIC benefits. This matter is before the Board of Veterans' Appeals (Board) on appeal from an administrative decision issued in November 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In the November 2015 administrative decision, the RO stated that the evidence did not show that the appellant was rendered permanently incapable of self-support prior attaining 18 years of age, and therefore could not be considered the surviving child of the Veteran and was not eligible for DIC benefits. The appellant perfected an appeal of this denial to the Board. A February 2019 Board decision denied the appellant's claim for recognition as the Veteran's surviving child. A May 2020 Memorandum Decision Order of the United States Court of Appeals for Veterans Claims (Court) vacated and remanded the February 2019 denial, stating that the Board provided inadequate reasons and bases for its decision. In a December 2020 decision, the Board again denied the claim, and the appellant appealed that decision to the Court. In November 2024, the Court issued a decision that set aside the Board's December 2020 decision and remanded the claim back to the Board for adjudication consistent with the directives in the Court's decision. The appellant was notified that the appeal had been returned to the Board in December 2024 correspondence, and informed that she had 90 days to submit additional evidence or argument. No further argument or evidence was received. 38 C.F.R. § 20.5. As the 90-day period has elapsed, the Board will proceed to address the appeal on the merits. See Clark v. O'Rourke, 30 Vet. App. 92, 9799 (2018). The appellant to date has not submitted a properly executed power of attorney in favor of a representative. As such, she will be treated as pro se for the purposes of this decision. 1. Recognition of the appellant as the Veteran's surviving child for the purposes of eligibility to apply for VA Dependency and Indemnity Compensation (DIC) benefits is denied. Veterans Claims Assistance Act of 2000 (VCAA) As noted in the Board's December 2020 decision, the appellant raised several arguments on appeal to the Court which were not ultimately addressed in the May 2020 Memorandum Decision. The Board addressed these arguments in the December 2020 decision but reiterates its findings and conclusions herein, as the appellant has raised some of these arguments again in correspondence and briefs before the Court submitted subsequent to the Board's December 2020 decision. First, the appellant appears to have argued that it was error for the Board to not remand her claim to have the regional office consider evidence submitted along with her July 2016 substantive appeal. However, in legacy appeals a waiver of agency of original jurisdiction (AOJ) review of evidence is presumed for all evidence submitted by a claimant at the time of or after the filing of a substantive appeal. 38 U.S.C. § 7105(e) (2012). The appellant did not expressly state that she wished for the AOJ to review the evidence submitted with her substantive appeal. Id. As such, a waiver of the evidence submitted was presumed at the time of the prior decision. Further, as specifically noted in the February 2019 Board decision, the evidence submitted along with the substantive appeal was duplicative, exactly so, of evidence already considered by the AOJ in its decisions. The appellant submitted numerous copies of SSA records, all which were already of record and considered at the time of the July 2016 statement of the case. The two physicians' letters, private treatment records, and the divorce decree were also already of record, specifically as part of the documents provided by the SSA which were considered at the time of the statement of the case. As all of the evidence submitted with or after the receipt of the substantive appeal was simply copies of documents already considered by the AOJ, a remand for AOJ consideration was not necessary. 38 C.F.R. § 20.1305(c). While additional argument was received with and after the substantive appeal in the form of briefs originally filed with the SSA, a waiver is only required for evidence not argument. Id. As such, a remand for AOJ consideration of the evidence received with or after the July 2016 substantive appeal is not necessary. Id. In the March 2019 brief, the appellant argued that the date of onset of her disability contained in her SSA paperwork, among other facts, was incorrect, and indicated that VA failed in its duty to assist her with the development of her claim by assisting her with fixing the alleged factual inaccuracies in the SSA paperwork. The duty to assist includes the duty to help a claimant obtain relevant records and obtain a medical examination or opinion when necessary to decide a claim. 38 C.F.R. § 3.159(c)(2), (4). Nowhere in the statutes or regulations governing VA's duty to assist is it stated that VA is required to assist with correcting alleged inaccuracies in any documents, let alone documents maintained by and received from a wholly separate federal agency. As such, the Board finds that VA did not fail in its duty to assist in this regard. 38 C.F.R. § 3.159(c). In this same brief, the appellant stated that if the Board refused to acknowledge or consider the private treatment records showing her 1971 and 1972 hospitalizations, then the Board was required to assist her in their procurement. To the extent this statement constitutes an argument that the claim should have been remanded to obtain private treatment records, the Board finds that a remand is not warranted. First, the February 2019 Board decision did specifically acknowledge the 1971 and 1972 treatment records reflecting her hospitalization. Second, these records were clearly associated with the file as part of the appellant's SSA records. There is no evidence that there were otherwise any outstanding private treatment records relevant to the appellant's claim nor have any such records been authorized for release. As such, the Board finds that VA's duty to assist with procuring relevant records has been satisfied. 38 C.F.R. § 3.159(c)(2). Eligibility for DIC When a Veteran dies, his or her surviving child may be eligible to VA death benefits, including DIC benefits, death compensation, and death pension. 38 U.S.C. §§ 1310, 1541; 38 C.F.R. § 3.50(a). To be recognized as a surviving child for the purpose of establishing eligibility for VA death benefits, the appellant must be: (1) unmarried; and, (2) either under the age of 18, have become permanently incapable of self-support before turning 18, or be under 23 and pursuing an education. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57. With respect to a child who is incapable of self-support before turning 18, 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). Such a determination is a factual one to be made on a case-by-case basis, and rating criteria for disabilities are not controlling on any determination. Id. A child who has sufficient income for their reasonable support cannot be found to be incapable of self-support. 38 C.F.R. § 3.356(b)(1). However, employment which was casual, intermittent, unsuccessful, or terminated after a short period by reason of disability does not rebut a finding of permanent incapacity for self-support when otherwise established. 38 C.F.R. § 3.356(b)(2). Likewise, it cannot be determined that self-support is possible based on employment provided solely based on sympathetic or charitable considerations. 38 C.F.R. § 3.356(b)(4). If there is evidence a child was incapable of self-support prior to 18 years of age, the child may be found to be incapable of self-support at a later date despite intervening employment. 38 C.F.R. § 3.356(b)(2). However, the underlying cause of the incapacity must be the same as it was prior to 18, and there must not be evidence of an intervening disease or injury which could be the cause of the incapacity for self-support. Id. While employment, or lack thereof, prior to or after the age of 18 is a factor to consider, it is not dispositive of a self-support determination. 38 C.F.R. § 3.356(b)(3). Instead, 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. Id. It should also be considered whether the daily activities of the child in the home and community are indicative of an ability to provide self-support through employment. 38 C.F.R. § 3.356(b)(3). Ultimately, the focus must be on the claimant's condition at the time of his or her 18th birthday. Dobson v. Brown, 4 Vet. App. 443, 445 (1993). If a finding is made that a claimant was permanently incapable of self-support as of his or her 18th birthday, 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. Analysis It is uncontroverted that the appellant is the natural born child of the Veteran, with a birth certificate reflecting that the appellant was born to the Veteran and his spouse on April 30, 1955. 38 U.S.C. § 101(4). While the record shows that the appellant was married at one point for an unclear period of time, the record also shows that the marriage was terminated by divorce in September 1990 in a judgment issued by a Judge of Probate Court in Massachusetts. As the marriage was terminated prior to November 1, 1990, by a court with the authority to render divorce decrees, the appellant's marriage is not a bar to eligibility for DIC benefits as a surviving child. 38 C.F.R. §§ 3.55(b)(2), 3.206. It is also uncontroverted that the appellant filed her claim for DIC benefits on September 1, 2015, at which time, based on her date of birth, she was 60 years of age. Lynch v. Wilkie, 30 Vet. App. 296, 301-303 (2018). As such, the appellant cannot be considered to be the surviving child of the Veteran based on being either under 18 years of age or under 23 years of age and pursuing an eduction at the time of her application for DIC. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57; see Lynch, 30 Vet. App. at 301-303. Instead, the appellant has exclusively argued that she is eligible to apply for VA DIC benefits as the surviving child of the Veteran because she was rendered permanently incapable of self-support prior to attaining 18 years of age. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57(a). The appellant primarily argues that in 1971, at the age of 16, she had an accident at work which resulted in an open fracture of the right radius and ulna and a right knee injury. She asserts that the fracture, including the 1971 and 1972 surgeries to correct the initial break and subsequent infections, and the right knee injury rendered her permanently incapable of self-support prior to the age of 18. Private treatment records associated with the file reflect that in September 1971, the appellant presented for treatment with an open fracture of the radius and ulna in the right forearm after a fall at her work. Records also note a right knee contusion on admission, with some additional treatment for knee pain. An operative note from that same month reflects that the right forearm fracture was surgically repaired. Subsequent private treatment records reflect that the appellant underwent at least two additional operations in December 1971 and March 1972 to remove hardware and treat infections at the site of the September 1971 surgery. Following the March 1972 surgery, follow-up treatment records show ongoing pain and tenderness. On April 13, 1972, a record noted slight pain and elbow flexion from 35 degrees to 130 degrees. See 38 C.F.R. § 4.71, Plate I (showing normal range of motion of the elbow from 0 to 145 degrees). An April 15 note stated that the appellant was doing well. An April 18 record showed extension and flexion from 30 degrees to 130 degrees, normal pronation and supination to 65 degrees, with slight pain on reaching. See id. A record from the next day reflected more reports of pain, and a record from April 21 noted elbow extension had improved to 25 degrees. See id. A separate April 21 treatment record noted that the appellant's surgical wound was healing well with no drainage or swelling, but that there was some tenderness at the radius on palpation. A later March 1982 treatment record notes that the appellant underwent a left knee operation. The operative note stated that the appellant reported a history of non-traumatic dislocations of both patellae, with increasing knee pain in the recent months. The pre- and post-operative left knee diagnoses were recurrent dislocation of the left patella. A pre-operative anesthesia consultation reflects that prior to the left knee surgery, the appellant reported a history of trauma to her right upper extremity but reported no other injuries. Another private treatment record noted that the appellant was being hospitalized for left knee pain and recurrent dislocation of the patella, and that the appellant reported a history of dislocating her left knee while getting dressed. Although the date on the record is illegible, as the record lists the reason for hospitalization in part as surgery for the left knee and the record is from the same medical facility that performed the March 1982 surgery, it is clear that the record was created in conjunction with the March 1982 surgery and therefore likely immediately pre- or post-dates the surgery itself. Records immediately following the surgery reflect the appellant was doing well on crutches and the surgical site was healing. In support of her appeal, in July 2016 the appellant submitted a December 2005 statement from a medical professional, Dr. B.B., addressed to the Maine Board of Bar Examiners regarding the appellant's need for accommodation to take the Bar Exam. The doctor stated that he believed that the appellant did not have carpal tunnel syndrome as a result of the 1971 right forearm fracture, reasoning that carpal tunnel syndrome usually never results from immediate and irreparable trauma of a compound radial fracture and multiple ulnar fracture with repeated surgical trauma. Rather, he stated that the appellant had a permanent injury resulting from fractural and surgical trauma that significantly impaired her ability to use her forearm and hand. The statement further indicated that performing repetitive wrist and finger flexion when attempting to handwrite or type would cause inflammation and possibly permanent injury. The statement concluded that the appellant should be provided with testing accommodations in light of this disability. The appellant also submitted a March 28, 2014, statement addressed to the SSA from a physician, Dr. R.L, MD, from Boston University Medical Center. The physician stated that he performed the March 1972 operation to remove an infection following the appellant's September 1971 severe forearm fracture. The physician noted that, following surgery, the appellant required extensive antibiotic treatment to ensure healing, which eventually occurred. The physician then stated that he surgically repaired the appellant's knee ten years later after she suffered a series of dislocations of her patella-femoral joint with complete tearing of the associated tissues. The physician then stated that the surgical wounds healed without incident. There is no evidence that the statements from either physician are not competent, and there is no evidence that they are not credible. As such, they are entitled to probative weight as to the severity of the appellant's disabilities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition to the two doctor's statements, in July 2016, the appellant submitted a portion of a May 2014 private treatment record noting that she had weakness in the intrinsic muscles of the right hand and wrist, a bony deformity on the right forearm, and a history of bilateral patellar dislocations with corrective surgery on the left side. No other functional loss or symptoms were present. SSA records associated with the appellant's SSA disability claims have been associated with the file. As part of the appellant's claim, a medical examination was conducted in December 2013 and two disability determinations were issued in January 2014 and June 2015. The December 2013 medical examiner noted that the appellant appeared with well-healed surgical scarring at the right forearm, and further noted that the appellant reported that the scarring stemming from the 1971 and 1972 surgeries. The examiner further noted that the appellant reported numbness and chronic pain, with the pain causing difficulty with reaching, lifting, carrying, gripping, and fine finger manipulations. With respect to the physical examination, the appellant was noted to have refused examination of any extremity other than her right upper extremity. On examination, the examiner stated that the surgical scars were well-healed, with no tenderness, swelling, redness, heart or deformity. Skin integrity, color and temperature were all normal. The examiner stated that the right shoulder, elbow, forearm, wrist, and handed fingers were capable of full and strong ranges of motion, and that fine finger movements were normal as the appellant displayed the ability to manipulate personal items during the evaluation with good dexterity. The December 2013 examiner stated that while the appellant reported decreased sensation to light touch, she refused pin prick and reflex testing. Otherwise, the examiner stated that there was no evidence of language or recall deficits, the left upper extremity was without impairment, and that the appellant ambulated with a normal independent gait with normal stride, step length, and speed. The overall impression was of right upper extremity pain, without range of motion or neurological deficits that limit use of the extremity, although the examiner stated that there would be mild limitations with work due to the reported pain. The January 2014 disability determination noted that the appellant was capable of occasionally lifting or carrying 50 pounds, frequently lifting or carrying 25 pounds, and standing, walking, or sitting for more than 6 hours of an 8-hour day. No postural, manipulative, visual, communicative, or environmental limitations were noted. A work history as a graphic designer from 1980 to 1982, research from 2011 to 2012, and a writer in 1999 was noted. Overall, based on the December 2013 assessment and the appellant's work history, the determination indicated that the appellant was not disabled due to her right forearm fracture. The appellant filed for reconsideration of that decision, and another SSA determination was issued in June 2014. This determination also cited the same December 2013 medical examination and included the exact same work history. The determination estimated the appellant was capable of occasionally lifting 20 pounds, frequently lifting or carrying 10 pounds, and standing, sitting, or walking for more than 6 hours a day. Push or pull was limited on the right, with some limitation on both gross and fine manipulation with the right hand. Based on this, the June 2014 disability determination stated that the appellant was disabled effective from October 10, 2013. The Board notes that the appellant has alleged in several findings or documents in her SSA records have been falsified, particularly with respect to her work history, disability onset date, and the findings in the December 2013 medical examination. However, there is a "presumption of regularity" under which it is presumed that government officials have properly discharged their official duties, which may only be rebutted by clear evidence to the contrary. Ashley v. Derwinski, 2 Vet. App. 307 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 1415 (1926)). A claimant's mere statement that he or she submitted a document to VA is insufficient for that purpose. Fithian v. Shinseki, 24, Vet. App. 146, 151 (2010). Here, the appellant has provided no clear evidence showing that the SSA records have been falsified in any way other than her own allegations to that effect, which on their own are insufficient. Id. As there is no evidence of any irregularities in the records received from the SSA, the Board finds that they are entitled to probative weight as to the question of the appellant's ability to provide self-support. Based on the above evidence, the weight of the most probative evidence is against a finding that the appellant was rendered incapable of self-support prior to attaining the age of 18. It is clear that in September 1971, the appellant, at the age of 16, fell at work and sustained a severe fracture of the radius and ulna in her right forearm, as well as a right knee injury. It is further uncontroverted that the right forearm injury was surgically repaired that month and required at least two further follow-up surgeries in December 1971 and March 1972. However, the dispositive issue is not whether the injury occurred, but whether this particular injury rendered the appellant permanently incapable of self-support prior to attaining 18. Dobson, 4 Vet. App. at 445. In reviewing the medical evidence, following the last March 1972 forearm surgery, treatment notes from March and April 1972 generally reflect that the appellant's injury healed well and properly. In treatment records from April 13, 18 and 21, 1972, it was noted that the appellant's range of motion was improving, going from 35 degrees of extension to 30 degrees to 25 degrees, respectively. See 38 C.F.R. § 4.71, Plate I. In addition, the letter the appellant submitted from the physician, Dr. R.L., who performed the March 1972 surgery stated that the injury fully healed following intensive antibiotic therapy. Thus, none of the medical evidence following the 1971 and 1972 surgeries reflect any severe sequelae or residuals, other that some pain and tenderness, which resulted in any sort of significant functional loss or limitation of any portion of the right upper extremity. While the December 2005 physician's letter notes that the appellant had significant impairment in her ability to use her forearm and hand, this assessment was based on the severity of the disability as it was in December 2005, not the severity of the disability prior to the appellant attaining 18 years of age. Further, even when taken at face value, the letter only notes that the appellant needed accommodations for the disability, not that it rendered her completely incapable of self-support. As such, the statement is of no probative value as to whether the appellant was incapable of self-support prior to attaining age 18. Further, while there is evidence of some treatment for a right knee injury immediately surrounding the September 1971 fall, there is no evidence of any disabling residual effects from the right knee injury in the subsequent record. While the appellant underwent surgery in March 1982, this surgery was on the left knee, which was not noted to have been injured in the September 1971 fall. While the appellant has asserted that she in fact injured both knees in the 1971 fall, this is assertion is directly contradicted by treatment records surrounding the 1982 left knee surgery, which note that the appellant reported dislocating her left knee while dressing herself. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Therefore, the assertion that both knees were injured in the fall is not credible and entitled to no probative weight. The statement from the physician who performed the knee surgery, Dr. R.L., also specifically noted the patellar femoral joint dislocations did not occur until a decade after the 1971 fall, at which point the left knee surgery was performed. The doctor further stated that the injuries treated in the March 1982 surgery healed without incident. While the SSA found that the appellant was disabled in a June 2014 determination, the Board first notes that SSA decisions are not controlling on VA. Martin v. Brown, 4 Vet. App. 136 (1993); Murincsak v. Derwinski, 2 Vet. App. 363, 369-370 (1992). Further, the SSA determination was based on the state of the appellant's level of disability at the time of the decision, which was rendered approximately 40 years after the initial September 1971 accident. As the SSA determination was made 40 years after the 1971 accident and 1971 and 1972 surgeries, the Board finds that it is of minimal probative weight as to the appellant's capacity for self-support prior to attaining age 18. The appellant argued in her March 2019 brief that the Board did not cite to any evidence establishing that she was capable of self-support prior to age 18. However, this argument appears to misinterpret the nature of the VA claims process and the duty to assist. While VA has a duty to notify claimants and assist them with the development of their claims, ultimately it is the claimant's responsibility to present and support a claim for benefits. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Ultimately, a claim is not granted simply because VA or the Board cannot disprove what a claimant is alleging. Despite the duty to assist, it remains a claimant's general evidentiary burden to establish all elements of his or her claim. Fagan v. Shinseki, 572 F.3d 1282, 1286 (Fed. Cir. 2009). Here, there is no medical evidence either directly following the 1971 and 1972 surgeries, or indeed since that date, that the right forearm disability or the right knee disability rendered the appellant permanently incapable of self-support prior to attaining age 18. As there was no evidence of severe disability, incapacity, or functional impairment following the 1971 fall and the 1971 and 1972 surgeries, the Board finds that the weight of the most probative evidence is against a finding that the appellant was rendered incapable of self-support prior to attaining age 18. As incapacity for self-support prior to age 18 has not been established, the Board need not address the evidence of record following the appellant attaining age 18. Dobson, 4 Vet. App. at 445. However, even if the Board were to evaluate the evidence after the appellant attained age 18, there is still no evidence that the appellant was rendered permanently incapable of self-support. The December 2013 SSA medical examination noted that the appellant had essentially normal function of the right upper extremity, and that the subjective reports of pain and numbness would likely result in only mild interference with employment. The May 2014 private treatment record submitted with the showed some additional muscle weakness, but did not note any severe impairment or loss of function of any portion of the right upper extremity. While the appellant's descriptions of her symptoms in statements submitted both to VA and the SSA have indicated much more severe impairment, the medical evidence of record, which includes objective findings of medical professionals, in particular the December 2013 SSA evaluation and the May 2014 private treatment record, does not reflect the same severity of disability. In April 2019, a private physician, Dr. W.P., MD, completed a Massachusetts Department of Transitional Assistance EAEDC Medical Report on behalf of the appellant. The doctor noted that the appellant claimed disability secondary to inability to use right arm and frequent knee dislocations. On examination, she had decreased sensation below the right elbow and scars were noted on the forearm and elbow. The left knee showed increased patellar laxity. The doctor stated the appellant's condition was chronic and was not expected to improve. He noted the history of injury in 1971 and noted that the residuals included decreased ability of use of the right arm. With regard to effects on activities of daily living, the appellant reported that she dropped things from her right hand and that she had decreased use of her right hand in the context of using a computer. The doctor concluded that the appellant had a physical, mental health, or cognitive impairment affecting her ability to work, and that the impairment was expected to last more than a year. Dr. W.P. also authored two reports/letters. The first, also dated in April 2019, noted that he reviewed medical records provided to him by the appellant pertaining to her 1971 injury. She stated that she was disabled because she could not use the right arm normally. She stated that she dropped things, could not use her cell phone normally, had difficulty typing, and difficulty using the phone with the right arm as pain occurs when doing so. She obtained a law degree in 2001 but was unable to take or pass the bar exam because of difficulties writing. She had no accommodations. On examination, her right arm was atrophied compared to the left. She had multiple scars on it and decreased sensation to light touch and cold distally. Her movements were slower on the right. She had give-and-take weakness of the right arm, difficulty manipulating objects with the right hand, but no graphesthesia or hypersensitivity. She had full elbow range of motion. Strength in the left arm and legs was normal. Reflexes were 1+ throughout. Finger-to-nose and heel-to-shin were done well. Her gait was normal. The doctor concluded that she "certainly has impairment of the right arm." In a second, January 2021, letter, Dr. W.P. noted that in April 2019, he felt, based on history, record review, and examination, that the appellant had impairment of the right arm. She had decreased sensation below the elbow and multiple scars, and increased laxity of her left patella. The doctor felt she had a disability in that she had an inability to use her right arm as well as history of frequent knee dislocations. Her condition was chronic and not expected to improve. Although Dr. W.P. had not seen her since initial evaluation in 2019, he stated there was no reason to suspect that she had improved at all. She continued to have impairments and was markedly impaired in her inability to use her arm appropriately. She had described to me her inability to pass the Bar Examination because of the lack of accommodations available. Without appropriate accommodations, he stated she would be very disabled. The Board finds that the documentation from W.P. dated in April 2019 and January 2021 does not establish that she was rendered permanently incapable of self-support. While, certainly, it is clear from Dr. W.P.'s reports and the other evidence of record that she has limitations with regard to the use of her right arm resulting from the 1971 injury, Dr. W.P. stated in his January 2021 letter that, without accommodations, she would be very disabled, indicating that, conversely, she would be capable of activities such as taking a Bar Examination with accommodations. Moreover, Dr. W.P.'s statement in the January 2021 letter that the appellant had "inability to use her right arm" directly contradicts his other statements, including in the same January 2021 letter wherein he stated she was "markedly impaired in her inability to use her arm appropriately," and in the 2019 letter wherein he stated she had impairment in the use of her right arm. With regard to the limitations he described as attributable to her knee dislocations, as discussed above, the knee conditions are not related to the 1971 injury. Finally, nowhere in either the 2019 report or letter and 2021 letter does Dr. W.P. suggest that she is incapable of self-support. In sum, the reports/letters from Dr. W.P. hold no probative value as to whether the appellant was rendered incapable of self-support prior to attaining the age of 18, and, moreover, still do not show that she was incapable of self-support at the time the doctor evaluated her in 2019. The Board acknowledges that the appellant has a near non-existent work history, with SSA records noting only three prior instances of employment. In addition, the Board observes that in May 2020, the appellant submitted an SSA Earnings Record showing her taxable earnings from 1971 to 2017. It included the following earned income: $41 in 1971, $42 in 1974, $50 in 1975, $774 in 1978, $239 in 1980, $23 in 1987, $17 in 1992, $2,232 in 1997, $953 in 1998, $1,330 in 1999, $800 in 2005, $5,077 in 2006, $387 in 2009, and $27 in 2013, with zero income in the other years. However, the simple fact that an individual was not working does not mean that they were incapable of self-support. 38 C.F.R. § 3.356(b)(3). Instead, it must be shown that such unemployment was the result of a physical or mental defect incurred prior to age 18. The evidence reflects that the appellant was able to graduate from law school in 2001, and in her own March 2019 appellate brief she stated that she accomplished this without any accommodations from her school. While the record currently reflects an extremely sporadic work history, the appellant's graduation from law school displays her ability to succeed in an environment that is at least akin to a work setting, which in turn reflects an ability to support herself despite the noted right knee and right forearm disabilities. Further, the appellant has seemingly applied the skills learning in law school to represent herself in a variety of proceedings before the District Court of Massachusetts, the SSA, and VA. As part of this self-representation, the appellant appears to have conducted legal research and engaged in extensive brief writing, thus demonstrating that, in practice, she is able to perform the tasks necessary to support herself as an attorney. Concerning her law school graduation, in a brief submitted in July 2016, the appellant argued that her above accomplishments are not indicative of her ability to support herself as she was unable to pass the bar because she was refused special accommodations for her disability by the Massachusetts Board of Bar Examiners. In support of this assertion, she included a citation to her suit against the Massachusetts Board of Bar Examiners. Varad v. Barshak, 261 F. Supp. 2d 47 (D. Mass. 2003). First, the inability to pass the bar examination does not diminish the fact that the appellant was able, over the course of three years, complete all of the work necessary to successfully graduate from law school and has represented herself in a variety of litigation, thus displaying an ability to support herself as an attorney. Second, a review of the District Court opinion cited by the appellant presents a much different factual picture concerning the circumstances surrounding the bar examination. According to that decision, the appellant in the current case applied to participate in the Massachusetts Bar Examination in July 2001 and February 2002 but failed the exam on both occasions. Id. at 535-536. The District Court noted that as part of both applications to sit for the bar examination she was provided with the instructions for how to properly apply for accommodations for a disability, but did not actually submit a proper application for accommodations before either the 2001or 2002 examination. Id. Thus, based on the District Court's decision, the appellant in this case was not incapable of taking the bar due to her disability, as it specifically noted she completed both examinations despite the presence of her forearm and knee disabilities. Id. Further, even if her ability to effectively take either examination was hampered by her forearm disability, the cited opinion also noted that she has at no point complied with the instructions for requesting disability accommodation, which directly contradicts her current assertions that she was denied special accommodations and therefore was unable to pass due to her disability. Id. There is no evidence of any further attempts to pass the Massachusetts Bar Examination after properly applying for disability accommodation. While the December 2005 physician's letter appears to have been written in support of a request for an accommodation for the Maine Bar Examination, it is not clear whether that request was granted or denied, nor is there any evidence that the appellant took the Maine Bar Examination. As such, the appellant's explanation that she was later unable to pass a Bar Examination due to her disability as she was refused accommodations is directly contradicted by other evidence of record and is therefore not credible and entitled to no probative weight. Caluza, 7 Vet. App. at 511-512. Ultimately, the evidence after the appellant attained the age of 18 does not reflect a permanent inability to support herself since the 1971 accident and subsequent surgeries. The appellant was able to graduate from law school and represent herself in litigation with several different entities. None of the medical evidence reflects substantial or severe functional loss of the right upper extremity or the right lower extremity, with the December 2013 medical evaluation noting that the appellant has essentially normal function of the right upper extremity and that there was no evidence of interference with walking from the right knee. While the December 2005 letter and 2019 and 2021 reports from Dr. W.P. note that the right forearm disability may require accommodation, that does not establish that it rendered the appellant incapable of self-support. As such, the weight of the most probative evidence is against a finding that the appellant was rendered permanently incapable of self-support prior to attaining the age of 18, or that such incapability continued after attaining the age of 18. As such, the appellant cannot be considered to be the surviving child of the Veteran for the purposes of eligibility to apply for DIC benefits. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57. For these reasons, the claim is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sherrard, Tricia L. 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.