Citation Nr: 1302882 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 07-27 786A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a monetary allowance under 38 United States Code Section 1805 as a child born with spina bifida of a Vietnam Veteran. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Veteran (the appellant's father) ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968, including service in Vietnam. The appellant is the Veteran's daughter. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In September 2009, the appellant and the Veteran testified at a travel board hearing before the undersigned. A transcript of that hearing is of record. In a January 2010 decision, the Board, having found that new and material evidence had been received to reopen a previously denied claim of entitlement to a monetary allowance under 38 United States Code Section 1805 for a child born with spina bifida of a Vietnam Veteran, remanded the matter for further development. Subsequently, in an October 2011 decision, the Board denied the claim. The Veteran appealed the October 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2012, the Court granted the joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In December 2012, the appellant submitted additional evidence from a private treatment provider providing additional details concerning her claimed spina bifida disorder. With this evidence, the appellant specifically asked that her case be remanded to the agency of original jurisdiction for review of the newly submitted evidence. As such, remand is required, as the appellant has expressly not waived regional office consideration of this evidence. Additionally, the Board notes that a February 1997 medical statement indicates that the appellant presented with spina bifida occulta of the lower cervical spine and upper thoracic spine levels C7, T1, and T2. An April 2006 letter from Dr. D.C.G. states that the appellant has "congenital fusions of her cervical spine at the C2-C3 and C6-C7 levels with significant posterior element deformity. This is a significant congenital deformity and does not fit the definition of spina bifida occulta. Her spina bifida is quite significant and a part of her spinal deformity." A June 2006 letter from Dr. D.C.G. states, "My patient is the daughter of a Vietnam Veteran. She has a congenital deformity of the cervical spine including spina bifida. This is not occult spina bifida, but a significant deformity. In my opinion within a reasonable degree of medical probability, it is likely that her cervical spinal deformity is agent orange related." An August 2006 letter from Dr. D.C.G. states, "This is a letter in reference to my patient .... She was born with a significant spinal deformity of the cervical spine. She does have a significant degree of spina bifida. This is not an occult type deformity." An August 2007 letter from Dr. D.C.G. states, "[t]his is a letter in reference to my patient .... She was born with a significant spinal deformity of the cervical spine. She does have a significant degree of spina bifida. This is not an occult type deformity." In a September 2009 letter, Dr. D.G.G indicates that the appellant clearly has spina bifida in her cervical spine which is a congenital defect that was present at birth. He states that: [s]he has a significant deformity of her cervical spine however in the area of congenital fusion and significant spina bifida. This is not typical of mild spina bifida occulta. I suspect that there is some component of meningocele, which is more significant form of spina bifida. I do not think she has myelomenignocele. I know there is some association between spinal deformity and Agent Orange although not certain of all the specifics of this association[.] I must say [the appellant] does not have minor congenital changes to her cervical spine. Her changes are diffuse and severe and involved essentially all parts of the cervical spine including congenital fusion in the upper and lower region and significant spina bifida. This is not typical or average for even the usual case of congenital abnormality that I see. . in the neck. The appellant was afforded a VA examination in June 2010. Upon review of the claims folder and evaluation of the appellant, the examiner specifically found that there was no diagnosis of spina bifida. The examiner indicated that there was no radiographic report in the claims folder mentioning spina bifida. While there was segmentation abnormality with fusion of two adjacent vertebral cervical bodies, he found that it was not consistent with a diagnosis of spina bifida. The examiner further indicated that the appellant's nervous system was within normal limits. A May 2012 letter from Dr. D.C.G. reflects that the appellant had spina bifida at multiple levels of the cervical spine. Dr. G. opined that congenital abnormality predisposed the appellant to progressive degeneration. An August 2012 letter from Dr. D.C.G. contains a diagnosis of meningocele-type spina bifida. As reviewed above, the claims file contains inconsistent and sometimes contradictory information regarding the nature of the appellant's claimed spina bifida. While the August 2012 letter from Dr. G. appears to provide a diagnosis of meningocele-type spina bifida, Dr. G. makes no mention of the February 1997 medical statement which reflects a diagnosis of spina bifida occulta. Additionally, Dr. G. does not account for the negative June 2010 VA examination report. As such, his opinion does not appear to be based on all of the evidence of record. Similarly, the June 2010 VA examination report appears to be flawed. While the report reflects that the examiner performed a visual inspection of the lumbar and cervical regions, the examiner specifically indicated within the report that he did not perform any diagnostic or clinical tests. No X-ray or MRI was performed by the examiner. Additionally, the VA examiner did not discuss the records from Dr. G. which are supportive of the appellant's assertions. As such, the June 2010 VA examination report is inadequate. In light of the above, the Board finds that the appellant should be afforded a new VA examination-one in which all of the positive and negative evidence of record is considered and in which any given diagnosis is supported by clinical evidence. Accordingly, the case is REMANDED for the following action: 1. The appellant should be provided a VA examination by an appropriate specialist to determine whether she manifests any form of spina bifida, and if so, whether such condition is consistent with spina bifida occulta. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner is requested to identify the specific category of the appellant's spina bifida; and if the examiner determines that the appellant suffers from a form other than spina bifida occulta, the examiner should identify each clinical finding that represents such form or manifestation. The examiner is requested to specifically discuss his/her findings in relation to the February 1997 medical statement which indicates that the appellant presented with spina bifida occulta of the lower cervical spine and upper thoracic spine levels C7, T1, and T2, the June 2010 VA examination report which indicates that the appellant does not have spina bifida, and the August 2012 letter from Dr. D.C.G. which contains a diagnosis of meningocele-type spina bifida. The examiner should ensure the examination report contains a detailed rationale for any opinions proffered in conjunction with this request. 2. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the appellant should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).