Citation Nr: 0000635 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 94-19 324 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Whether the veteran's child may be recognized as a helpless child. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Associate Counsel INTRODUCTION The veteran served on active duty from September 1964 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1993 rating decision by the Roanoke, Virginia RO that denied entitlement to helpless child benefits on the basis that the veteran's son, [redacted], did not become permanently incapable of self- support due to a physical or mental disability prior to the age of 18 years. The Board notes that the veteran was scheduled for a hearing before the Board at the Roanoke, Virginia RO in May 1999; however, the veteran failed to report to the hearing. REMAND The veteran contends that the RO incorrectly denied his claim of entitlement to additional VA disability compensation benefits based on a recognition of his son [redacted] as a "helpless child" on the basis of permanent incapacity for self-support prior to reaching the age of 18 years. Essentially, the veteran maintains that a psychiatric disability has prevented [redacted] from securing and following any substantially gainful employment, and living independently of his parents. In order to be recognized as a "helpless child," a child must be 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. 38 C.F.R. § 3.356 (1999). For purposes of Title 38 of the United States Code, the term "child" is specifically defined as a person who is unmarried and (1) who is under the age of eighteen years; (2) who, before attaining the age of eighteen years, became permanently incapable of self-support; or (3) who, after attaining the age of eighteen years and until completion of education or training, is pursuing a course of instruction at an approved educational institution; and who is a legitimate child of a veteran. 38 U.S.C.A. § 101(4)(A) (West 1991); 38 C.F.R. § 3.57(a)(1) (1999). Marriage of a child shall not bar the furnishing of benefits if the marriage was void or has been annulled by a court having basic authority to render annulment decrees, unless it is determined by VA that the annulment was obtained through fraud by either party or by collusion. On or after January 1, 1975, marriage of a child terminated prior to November 1, 1990, shall not bar the furnishing of benefits to or for such child provided that the marriage has been terminated by death or has been dissolved by a court with basic authority to render divorce decrees unless VA determines that the divorce was secured through fraud by either party or by collusion. 38 C.F.R. § 3.55(b) (1999). The RO denied the veteran's claim on the basis that the evidence was insufficient to establish that the veteran's son [redacted] became permanently incapable of self-support prior to reaching the age of 18 years. However, the Board notes that the veteran testified during an April 1996 personal hearing that his son [redacted] "has been married two years." The veteran further testified that he believes [redacted] married [redacted] in November 1993. The RO should obtain [redacted]'s marriage certificate and associate it with the claims folder. In addition, the Board believes that the RO must address the question of whether the veteran's son [redacted] is entitled to recognition as the helpless child of the veteran since he is married. The United States Court of Appeals for Veterans Claims (Court) has held that, when the Board addresses a question which has not yet been addressed by the originating agency, the Board must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on the question, whether he has been given an adequate opportunity to submit such evidence and argument, and whether the statement of the case provided to the veteran fulfills the regulatory requirements. See 38 C.F.R. § 19.29 (1999). If not, the matter must be remanded to avoid prejudice to the claimant. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Thus, the Board finds that this case must be remanded to the RO to ensure that adequate notice has been given to the appellant on this matter and so that he may be given an opportunity to present argument and additional evidence on this matter. Finally, the Board notes that the veteran testified during an April 1996 personal hearing that his son [redacted] has been receiving disability benefits from the Social Security Administration (SSA) since about March 1994. The Court has held that VA's duty to assist includes obtaining complete Social Security records where SSA benefits have been awarded and the records might be needed by VA for evaluation of pending claim. Martin v. Brown, 4 Vet. App. 136, 140 (1993); See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In view of the foregoing, this case is REMANDED to the RO for the following development: 1. The RO should contact the Social Security Administration in order to obtain a copy of that agency's decision with respect to the veteran's son [redacted]'s claim for disability benefits, together with copies of all medical records considered in arriving at that decision. 2. The RO should obtain a copy of the veteran's son [redacted]'s marriage certificate. Any records obtained should be associated with the claims file. 3. The RO should give the appellant an opportunity to raise arguments and additional evidence on the issue of whether or not his son is entitled to recognition as the helpless child of the veteran since he is married. 4. Thereafter, the RO should review the issue of whether the veteran's son is entitled to recognition as the helpless child of the veteran, taking into consideration his marital status. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. C. W. SYMANSKI Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).