Citation Nr: 1218921	
Decision Date: 05/29/12    Archive Date: 06/07/12

DOCKET NO.  06-03 759A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to benefits under 38 U.S.C.A. § 1805 for a veteran's child who was born with spina bifida.


WITNESSES AT HEARINGS ON APPEAL

Appellant, his spouse, and his daughter (an observer).


ATTORNEY FOR THE BOARD

D.J. Drucker, Counsel



INTRODUCTION

The Veteran had active military service from November 1959 to January 1975.

The appellant, who is the adult son of the Veteran, had active duty from March to June 1987.  Although the requested benefits derive from his father's (the Veteran's) military service, this case is certified to the Board of Veterans' Appeals (Board) using the appellant's social security number (SSN) as the claim number as he is over eighteen years old.  

This matter initially came to the Board on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In February 2006, the appellant testified during a personal hearing at the RO and, in March 2010, he testified during a hearing at the RO before the undersigned Veterans Law Judge.  The appellant was unrepresented at both hearings and expressed his preference to proceed without a representative.  Transcripts of both hearings are of record.

In August 2010, the Board remanded the appellant's claim to the RO for further evidentiary development.


FINDINGS OF FACT

1.  The Veteran is the biological father of the appellant.

2.  The Veteran performed active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.

3.  The appellant was born in September 1966, after the Veteran's initial service in Vietnam.

4.  The appellant has spina bifida with meningocele, but not spina bifida occulta.


CONCLUSION OF LAW

The criteria for entitlement to benefits under 38 U.S.C.A. § 1805 for an individual suffering from spina bifida whose father is a Vietnam veteran have been met.  38 U.S.C.A. §§ 1802, 1805, 5107 (West 2002); 38 C.F.R. § 3.814 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011). 

Notwithstanding the above obligations, as the Board is granting the claim for benefits under 38 U.S.C.A. § 1805, the claim is substantiated, and there are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

Moreover, in the instant case, although the appellant's claim for benefits under 38 U.S.C.A. § 1805 is being granted, no monetary amount or effective date will be assigned and, as set forth below, there can be no possibility of prejudice to the appellant.  As discussed herein, no additional notice or development is indicated in the appellant's claim.  The RO will again provide appropriate notice as to the criteria regarding allowable benefits and effective date to be assigned prior to the making of a decision on this matter.

II. Factual Background and Legal Analysis

Chapter 18 of title 38, United States Code, authorizes health care, vocational training and rehabilitation, and a monetary allowance for individuals who are the natural children of Vietnam veterans and who suffer from spina bifida.  The term spina bifida is generally considered to encompass three main conditions: spina bifida occulta; meningocele; and myelomeningocele.  See VAOPGCPREC 5-99.  Chapter 18 applies with respect to all forms and manifestations of spina bifida except spina bifida occulta.  See 38 C.F.R. § 3.814(c)(3).  Spina bifida is the only birth defect that warrants the award of monetary benefits based on the herbicide exposure of a veteran as a father of a child.  Jones v. Principi, 16 Vet. App. 219 (2002).

VA shall pay a monthly allowance, based upon the level of disability, to or for a child who has been determined to be suffering from spina bifida and who is a child of a Vietnam Veteran.  38 U.S.C.A. § 1805; 38 C.F.R. § 3.814. 

The VA General Counsel held that, for purposes of title 18 benefits, the term "spina bifida" referred to a defective closure of the bony encasement of the spinal cord but did not include other neural tube defects such as encephalocele and anencephaly.  VAOPGCPREC 5-99.

The term "Vietnam veteran" means a person who performed active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, to include service in the waters offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. § 3.814(c)(1).

After review of all of the evidence in this case, the Board finds that the Veteran is a Vietnam veteran as defined under 38 C.F.R. § 3.814(c)(1).  His DD Form 214s reflect that he served in Vietnam from March 22nd to October 23rd, 1965 and from June 21, 1967 to July 13, 1968. 

The Board further finds that the appellant is the son of the Veteran, and that he was born in September 1966, after the Veteran's first period service in Vietnam.  The appellant's birth certificate lists the Veteran as his father.  The Board finds that this document constitutes credible evidence of the Veteran's paternity of the appellant.  Moreover, it satisfies the requirement of 38 C.F.R. § 3.814 (c)(3) as the type of evidence specified in 38 C.F.R. §§ 3.209, 3.210 (2011) sufficient to establish that a person is the biological son or daughter of a Vietnam veteran.  There is no evidence to the contrary.

Further, the medical evidence of record demonstrates that the appellant was diagnosed with spina bifida.  Notably, the appellant has indicated that he had spina bifida for which he was treated shortly after his birth at Balboa Naval Hospital in San Diego, although efforts to obtain these records were unsuccessful (see February 8, 2011 RO memorandum).  He reported that he underwent surgery for a rebuilt urethra tract in 1975, and had multiple subsequent genitourinary and other surgeries, including kidney transplant, related to the spina bifida.

An August 10, 1998 Admission History and Physical from Palmetto Baptist Medical Center indicates that the appellant's past medical history was inclusive of spinal bifida and reflects that he suffered from chronic renal insufficiency secondary to progressive renal dysfunction that was attributable to multiple surgeries in the past as well as spina bifida.  A December 24, 1999 private magnetic resonance image (MRI) includes an impression of partial agenesis of the sacrum; and that the appearance of the distal thecal sac was consistent with prior meningocele repair.

A January 14, 2000 record from Palmetto Richland Memorial Hospital describes a past medical history of hypospadias, horseshoe kidney, and partial sacral agenesis with neurogenic bladder.  Results of an April 10, 2007 computed tomography (CT) of the lumbar spine revealed a congenital lumbar sacral spinal dysraphism with left convex scoliosis and diffusely shortened lumbar pedicles.  A December 17, 2007 private clinic record indicates that the appellant was seen for recurrent complicated pyelonephritis s/p kidney transplant in 2005 and ileal conuit, with a very complex surgical anatomy and over 150 surgical procedures secondary to congenital spinal bifida.

Results of a November 2011 CT of the appellant's lumbar spine performed by VA include a spina bifida defect that was noted posterior to L5 and the sacrum.  Metallic clips were noted in this region consistent with surgical closure.  The coccyx was not visualized.  The impression was surgically repaired spina bifida defect; agenesis of the coccyx.

Pursuant to the Board's August 2010 remand, in November 2011, the appellant underwent VA examination for miscellaneous neurological disorders.  According to the examination report, the examiner reviewed the appellant's medical records and performed a clinical evaluation.  The VA examiner said that it was "at least as likely as not" that the appellant had a form of spinal bifida with meningocele, upon review of the records noted.  The VA physician mentioned the December 24, 1999 MRI reported as correlation with the recent CT scan of the appearance of the thecal sac consistent with prior meningocele repair.  The VA examiner also concluded that it was "less likely as not" that the Veteran had spinal bifida with myelomeniogocele as the spina bifida with myelomeniogocele is usually obvious at birth because of a grossly visible lesion in the lumbar/sacral area.  The examiner said the appellant's birth clinical record physical examination noted only first degree hypospadius and his spine checked out as normal.  

Further, the VA examiner noted that the appellant's medical records described other congenital anomalies, including the congenital horseshoe kidney, complex anatomy, rectal narrowing with a need for dilation, and some kind of urethral stricture (noting the August 1998 Palmetto Hospital record).  The VA examiner said that, in view of the Veteran's multiple congenital defects and complex anatomy, no records regarding his multiple genitourinary surgeries or initial back surgery as a child, he was unable to correlate clinical findings that represent his spina bifida manifestation.

The Board acknowledges the recent VA examiner's inability to determine all the clinical findings that represent his spina bifida manifestation.  However, the legal requirements for establishing entitlement to benefits under 38 U.S.C.A. § 1805 do not include a showing that the claimant had spina bifida at birth or enumerating the clinical findings that represent a form or manifestation of spina bifida.  As set out above, the pertinent statute provides that VA "shall pay a monthly allowance under this section to any child of a Vietnam veteran for any disability resulting from spina bifida suffered by such child."  Similarly, 38 C.F.R. § 3.814(a) provides that "VA will pay a monthly monetary allowance under subchapter I of 38 U.S.C. chapter 18, based upon the level of disability determined under the provisions of paragraph (d) of that section, to or for a person who VA has determined is an individual suffering from spina bifida whose biological mother or father is or was a Vietnam veteran."  Thus, the law requires only that the child suffer from spina bifida, not that spina bifida must be present at birth or must be shown by specific testing at birth, or that the clinical findings of spina bifida must be enumerated. 

The Board acknowledges that the title of Subchapter I of Chapter 18 of the U.S. Code is "Children of Vietnam Veterans Born with Spina Bifida" (emphasis added). While presence from birth may indeed have been the intent of the drafters, they included no specific test or measure of presence from birth as a requirement for any benefit contained in that subchapter.  Indeed, each of the provisions under that subchapter - provisions dealing with health care and vocational training - mirror the language used in the section dealing with the monetary allowance.  They make such benefits available to "a child of a Vietnam veteran who is suffering from spina bifida."  Likewise, the regulations provide no specific requirement for establishing the presence of spina bifida from birth.  The Board finds that, to the extent that it conflicts with the specific requirements set out above, the wording of the title of Subchapter I of Chapter 18 of the U.S. Code does not itself establish a substantive requirement of being born with spina bifida for any benefit contained therein. 

Moreover, even if the law and regulations did require a showing of spina bifida at birth, as the December 1999 MRI showed a partial agenesis of the sacrum and that the appearance of the distal thecal sac was consistent with prior meningocele repair, the April 2007 CT revealed a congenital lumbar sacral spinal dysraphism and the November 2011 CT found a spina bifida defect, this requirement appears to be met. 

In sum, with consideration of the provisions pertaining to the resolution of reasonable doubt in favor of the claimant, the Board finds that the appellant is an individual suffering from spina bifida (not spina bifida occulta) whose father is a Vietnam veteran, and who was born after his father's initial period of service in Vietnam.  Thus, the criteria for benefits under 38 U.S.C.A. § 1805 are met. 






ORDER

Entitlement to benefits under 38 U.S.C.A. § 1805 is granted.



____________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs