Citation Nr: 18160481
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 11-24 348
DATE:	December 28, 2018
ORDER
Entitlement to recognition of A D as a dependent “child” on the basis of permanent incapacity for self support prior to age 18 is granted.
REMANDED
1. Issue of entitlement to service connection for hypertension is remanded.
2. Issue of entitlement to an increase rating in excess of 30 percent for right knee degenerative joint disease, status post total knee replacement, is remanded.
FINDING OF FACT
1. A D’s 18th birthday was in October 2006.
2. At the time of his 18th birthday, A D was permanently incapable of self support due to physical defect.
CONCLUSION OF LAW
The criteria to establish that A D was permanently incapable of self support prior to attaining the age of 18 years, and thereby establishing recognition as a dependent child of the Veteran, have been met.  38 U.S.C. § 101(4) (2012); 38 C.F.R. §§ 3.57, 3.356 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran has a period of active duty from August 1969 to March 1972.
This appeal to the Board of Veterans’ Appeals (Board) on the claim of entitlement to additional compensation based on recognition of A D as a dependent child based on permanent incapacity for self support prior to age 18 arose from a January 2017 rating decision issued by the Department of Veterans Affairs (VA).  See February 2017 Notice of Disagreement (NOD); March 2017 Statement of the Case (SOC); March 2017 Substantive Appeal (VA Form 9).
The Veteran, his spouse, son H C, and son A D testified before the undersigned Veterans Law Judge in a January 2018 hearing.  A transcript of the hearing is associated with the claims file.
Recognition of A D as a dependent child on the basis of permanent incapacity for self support prior to age 18.
The Veteran has claimed entitlement to additional compensation for his adult son A D based on the assertion that he is a “helpless child” under 38 C.F.R. § 3.57(a)(1)(ii).  See February 2017 NOD; January 2018 hearing.
Resolving any reasonable doubt in the Veteran’s favor, the Board finds that the evidence shows A D satisfies the criteria to be classified as a dependent child, or “helpless child.”
If a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling, an additional amount of compensation may be payable for a spouse, child, and/or dependent parent.  See 38 C.F.R. § 3.4(b).  A “child” of the veteran includes a child who is over the age of 18 years, but shown to be permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years.  See 38 C.F.R. §§ 3.57(a)(ii), 3.356(a).  The focus of analysis must be on the individual’s condition at the time of his or her 18th birthday.  Dobson v. Brown, 4 Vet. App. 443, 445 (1993).  It is the condition at that specific point in time that determines whether entitlement to the status of “child” should be granted.  Id.
The evidence shows that A D was born in October 1988 and, thus, attained the age of 18 years in October 2006.  See October 2016 VA Form 21-686c.
The Veteran contends that A D qualifies as a “helpless child” or dependent child due to his cerebral palsy and paraplegic symptoms since birth.  See February 2017 NOD; January 2018 hearing.  While A D earned an Associate’s Degree and is applying for a graduate school program, his family testified that he was able to achieve this with considerable help for his physical limitations.  See January 2018 hearing.  The Veteran’s spouse testified that she attends to A D’s bathing, grooming, eating, and other activities on a daily basis, including driving him to school.  See id.  The Veteran’s son H D testified that A D is unable to physically care for himself, and his family helps to give him a better quality of life.  See id.  The Board finds the testimony from the Veteran and his family about A D’s symptoms and needed care probative as they are consistent with each other and based on personal experiences and observations.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Charles v. Principi, 16 Vet. App 370, 374 (2002).
The Veteran also submitted two opinions from A D’s treating physicians in support of this claim.  The April 2017 letter from G W W, M.D., D.O., indicates that A D has had cerebral palsy and paraplegia since birth.  See April 2017 Private medical opinion.  The April 2017 letter from M B A, M.D., indicates that A D is wheelchair bound, unable to care for himself, and his family has been caring for him.  See April 2017 Private medical opinion.  The Board finds the opinions from Drs. W and A probative as they are qualified medical professionals and have a treating relationship with A D.
The Board recognizes that the earliest medical treatment evidence for A D in the claims file is from 2012, several years after his 18th birthday.  See October 2012 to March 2017 Private treatment records.  However, based on the lay testimony and medical opinion evidence, and in resolving any reasonable doubt in the Veteran’s favor, the Board finds that the overall evidence supports A D was permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years.
Accordingly, the Board finds that recognizing A D as a dependent child based on permanently incapable of self-support prior to the age of 18 years is warranted.
REASONS FOR REMAND
1. Issue of entitlement to service connection for hypertension.
The Board cannot make a fully-informed decision on the issue of service connection for hypertension because no VA examiner has opined whether the Veteran’s blood pressure readings from the 1973 VA examination support a medical link to his current hypertension disability.
In June 2018, the United States Court of Appeals for Veterans Claims (CAVC) vacated the May 2017 Board decision and remanded for VA to obtain a medical opinion clarifying whether the blood pressure reading during the 1973 VA examination indicated the Veteran suffered from hypertension in service.  See June 2018 CAVC decision.  The CAVC decision held that, while the November 2014 VA examiner explained why the readings were not useful to confirm a medical diagnosis of hypertension within a year after separation from service, the VA examiner did not adequately explain why the readings did not support that the Veteran had hypertension at that time.  See id.
The Board, thus, finds that an addendum VA examiner opinion is needed to clarify whether the 1973 blood pressure readings support a medical link between the Veteran’s current hypertension and service.
2. Issue of entitlement to an increase rating in excess of 30 percent for right knee degenerative joint disease, status post total knee replacement.
In the Veteran’s July 2017 substantive appeal pertaining to the claim of entitlement to an increase rating in excess of 30 percent for right knee degenerative joint disease, status post total knee replacement, the Veteran requested a live videoconference hearing before the Board.  See July 2017 VA Form 9.  The Veteran testified about his bilateral and general knee symptoms, but testimony specifically about his right knee symptoms was not elicited.  See id.  Because such hearings are scheduled by the Regional Office (RO), the case must be remanded for that purpose.
In addition, an addendum opinion from a VA examiner regarding the Veteran’s increase rating in excess of 30 percent for right knee degenerative joint disease, status post total knee replacement, is needed.  The March 2017 VA examiner stated that an opinion on whether pain, weakness, fatigability, or incoordination significantly limit the Veteran’s functional ability after repetitive use over a period of time could not be provided without resort to speculation, but the examiner did not indicate that the speculation was due to lack of knowledge within the medical community.  See March 2017 VA examination; Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).  The Board notes that the Veteran testified that he cannot walk long distances and will not do more than a flight of stairs.  See January 2018 hearing.  The March 2017 VA examiner also indicated that the Veteran reports no issues with flare ups, but the Veteran’s testimony indicates that sometimes he cannot bend down on his knees or get up, and that he uses a cane one in a while when it gets really cold.  See March 2017 VA examination; January 2018 hearing.  Clarification on whether there are significant functional limits after repetitive use over time and during a flare up is needed.
The matters are REMANDED for the following action:
1. Ask the Veteran to identify the provider(s) of any evaluations and/or treatment received for his right knee degenerative joint disease, status post total right knee replacement, and provide authorizations for VA to obtain records of any such private treatment.  Obtain complete clinical records of all pertinent evaluations and treatment (records of which are not already associated with the claims file) from the providers identified.  If any records sought are unavailable, the reason for their unavailability must be noted in the claims file.  If a private provider does not respond to VA’s request for the identified records sought, the Veteran must be so notified and reminded that it is ultimately his responsibility to ensure that private treatment records are received.
2. If possible, obtain an addendum opinion from the VA examiner who performed the March 2017 examination.  Otherwise, obtain an addendum opinion from an appropriate medical professional to determine the nature and cause of the Veteran’s hypertension.  If the examiner determines that it is necessary, schedule the Veteran for another VA examination regarding the etiology of his hypertension.  The medical professional should respond to the following:
(a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension began in (or is otherwise related to) the Veteran’s military service, manifested within a year after discharge from service, or was noted during service with continuity of the same symptomatology since service?
The examiner should specifically consider and discuss the Veteran’s blood pressure readings from the April 1973 VA examination, which show readings of 140/95 while sitting, 150/90 while recumbent, 130/85 while standing, 125/80 while sitting after exercise, and 135/90 two minutes after exercise.  The examiner should also consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms.  
A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate.
(b) If hypertension is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explained why that is so.
3. Schedule the Veteran for an examination of the current severity of his right knee degenerative disc disease, status post total knee replacement.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups or after repetitive use over time.  To the extent possible, the examiner should identify any symptoms and functional impairments due to his right knee degenerative disc disease, status post total knee replacement, alone and discuss the effect of the Veteran’s right knee degenerative disc disease, status post total knee replacement, on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, repetitive use over time, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
(Continued on the next page)
 
4. Schedule the Veteran for a Board videoconference hearing for his claim of entitlement to an increased rating in excess of 30 percent for his right knee degenerative disc disease, status post total knee replacement.  The matter should then be processed in accordance with established appellate practices.
 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Lin, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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