Citation Nr: 1314312 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 10-42 492 ) 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 disability due to spina bifida. ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from March 1966 to March 1969, including approximately one year of service on the ground in Vietnam. The Claimant is the biological child of the Veteran, who died in July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The Claimant's biological father had military service on the ground in the Republic of Vietnam. 2. The medical records reveal that the Claimant's had scoliosis and a tethered spinal cord, but reveal that no provider assigned a diagnosis of spina bifida. CONCLUSION OF LAW The criteria for a monetary allowance for disability due to spina bifida for a child whose parent served in Vietnam have not been met. 38 U.S.C.A. §§ 1802, 1805, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.814 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served a tour of duty in the Republic of Vietnam during the Vietnam War. His child, the Claimant, seeks to establish entitlement to a monetary allowance under 38 U.S.C.A. § 1805 for a child of a Vietnam veteran who has disability on account of spina bifida. For children of Vietnam veterans with qualifying service on the ground, Congress has authorized VA to 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. 38 U.S.C.A. § 1805(a); 38 C.F.R. § 3.814(a). Before it addresses the claim on the merits, the Board will discuss VA's duties to the Claimant. Duties to the Claimant VA is required to provide certain notice and assistance to claimants for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a Claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO advised the Claimant of the criteria for entitlement to benefits to benefits based on disability due to spina bifida in a February 2008 letter. The Claimant identified several treating providers, and records of each provider were requested. The rating decision, issued in October 2008, advised the Claimant that she had not established a diagnosis of spina bifida. No indication of defective notice is found by the Board. Adequate notice was provided to the Claimant prior to the transfer and certification of her case to the Board, and that notice complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Claimant submitted her birth certificate. Official confirmation of the Veteran's service in Vietnam has been obtained. The Claimant's status as a biological child of a Veteran who served on the ground in Vietnam is not in dispute. In her notice of disagreement, the Claimant demonstrated that she understood what was necessary to establish her claim. She identified additional providers, and those records were requested. She also indicated that she was unable to identify the providers who initially treated her for a spine disorder when she was about 11 years old. She indicated that, since the only information she had available was that she was treated at Cook County hospital, she was unable to provide additional information to locate the records. The Claimant asserted that a diagnosis of spina bifida had been assigned. VA examination was afforded to the Claimant in March 2010, and opinion as to whether there was evidence of spina bifida, including on radiologic examinations, was obtained in March 2010. The Claimant's claims files, including all records obtained during the course of this Remand, and the electronic (virtual) file available under the Veteran's service number, have been reviewed. The electronic file includes records for both the Veteran and the Claimant. The record does not indicate that there is any other available evidence that is relevant to the appeal. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination afforded to the Claimant and opinion rendered after that examination are more than adequate, as the opinion is predicated on review of the Claimant's history, radiologic examination reports, and current complaints, as well as the voluminous private clinical records available. The VA opinion provides a complete rationale for the opinion stated, citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Hence, no further notice or assistance to the Claimant is required to fulfill VA's duty to assist the Claimant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Facts and analysis The term "spina bifida," for purposes of benefits under 38 U.S.C.A. § 1805, is defined as "all forms and manifestations of spina bifida except spina bifida occulta." 38 U.S.C.A. § 1802; see Jones v. Principi, 16 Vet. App. 219 (2002) (holding that the plain language of 38 U.S.C.A. § 1802 does not limit the definition to spina bifida per se but includes other "forms and manifestations" of spina bifida except for spina bifida occulta); see also VAOPGCPREC 5-99. "Spina bifida" is "a developmental anomaly that is a kind of neural tube defect, characterized by defective closure of the vertebral arch, through which the spinal cord and meninges may protrude (s. bifida cystica) or may not (s. bifida occulta)." Dorland's Illustrated Medical Dictionary 1773 (31st ed. 2007). The record shows that the Veteran served in Vietnam during the Vietnam Era, thereby establishing the presumption that he was exposed to an herbicide agent in service. There is no dispute that the Claimant is the biological child of the Veteran. The birth certificate established that the Claimant was born after the Veteran's Vietnam service. The evidence establishes that the Claimant was found to have scoliosis during her childhood. She was treated, at Cook County Hospital, she believes, and a brace was prescribed. She used the brace for many years. The records of that treatment are not available. At the time of VA examination conducted in March 2010, the Claimant reported that she continued to have problems described as a weak bladder and tingling in the lower legs. After her first pregnancy, her problems increased. She sought evaluation in 2003 from Dr. C, who assigned a diagnosis of "spina bifida," the Claimant reported. No records from Dr. C dated in 2003 are associated with the claims files. In 2004, Dr. C. wrote a letter to DM, MD, in which Dr. C stated that he was treating the Claimant for back pain and scoliosis. Dr. C advised Dr. M that MRI (magnetic resonance imaging) disclosed no disc disease. Dr. C opined that a fatty filum was shown on the MRI and opined that a tethered spinal cord was present. Dr. C stated that he had advised the Claimant to undergo a minimally invasive spinal cord untethering. The letter from Dr. C to Dr. M does not reference a diagnosis of spina bifida. For purposes of information only, the Board notes that the filum of the spinal cord is a threadlike filament of connective tissue that descends from the conus medularis to the coccyx. Dorland's Illustrated Medical Dictionary 716 (31st ed. 2007). The Board further notes that the spinal cord normally hangs loose in the spinal column, free to move as the individual moves or stretches. When "tethered," the spinal cord is attached rather than loose. Operative records dated in August 2004 disclose that Dr. C performed an endoscopic spinal cord untethering. The August 2004 private records do not reference a diagnosis of spina bifida. The Claimant identified numerous private clinical records. Ideal Family Health Center provided records of the Claimant's 2006 through 2007 chiropractic treatment. Those private records do not reference a diagnosis of spina bifida. Records dated from 2004 to 2009 from the University of Chicago medical Center were obtained. Those records, which are lengthy (over 100 pages) discuss the Claimant's 2004 surgery by DJC, MD, her 2007 pregnancy, and a May 2009 MRI, among other medical records. The Board is unable to locate any reference to a diagnosis of spina bifida in those records. The 2009 MRI report states scoliosis is noted, that there is no evidence of central spinal stenosis, and that there is no evidence of neural foramina compromise, with minimal degenerative changes of the lumbar spine. The VA examiner who conducted the March 2010 VA examination noted that the Claimant's gait was normal. She walked without an assistive device. The examiner reviewed x-rays which confirmed that the Claimant had severe scoliosis. The examiner concluded that tethered spinal cord was not related to or caused by spina bifida. The extensive private medical evidence and the 2010 VA examination report disclose that no provider has assigned a diagnosis of spina bifida. The Claimant asserts that Dr. C. assigned a diagnosis of spina bifida. However, the record reflects that Dr. C. assigned a diagnosis of tethered spinal cord, not a diagnosis of spina bifida. The statutory scheme which provides monetary benefits to a child of a Vietnam Veteran who was exposed to Agent Orange only if there is spina bifida which meets the definition of a defective closure of the bony encasement of the spinal cord. VAOPGCPREC 5-99. The numerous reports of radiologic studies conducted in the Claimant's case disclose that no provider determined that there was a defective closure of the bony encasement of the spinal cord. This claim must be denied. ORDER The appeal for benefits under 38 U.S.C.A. § 1805 for disability due to spina bifida is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs