Citation Nr: 1543784 Decision Date: 10/13/15 Archive Date: 10/19/15 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 WITNESS AT HEARING ON APPEAL Appellant and Veteran (appellant's father) ATTORNEY FOR THE BOARD E.I. Velez, 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. In January 2013, the Board remanded the claim for further development. The Board has reviewed and considered all of the documents contained in the Appellant's Virtual VA file and Veteran's Benefits Management System. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims ("the Court") held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. In a Board remand of January 2013 the RO was requested to schedule the Appellant for a VA examination and ask the examiner to determine whether the Appellant "manifests any form of spina bifida, and if so, whether such condition is consistent with spina bifida occulta." The examiner was 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 Appellant was afforded a VA examination in August 2014. While the examiner conducted an examination of the Appellant and provided an opinion and rationale, he did not 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, as was requested by the Board in the January 2013 remand. The record shows that an addendum to the opinion was obtained in June 2015 by a different VA examiner after an MRI was conducted in May 2015. The opinion was provided after consultation with the January 2013 VA examiner. None of the examination reports and opinions discuss the 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, as was requested by the Board in the January 2013 remand. Further, the Board notes that the results of the MRI done in May 2015 have not been associated with the claim file. These must be obtained and associated with the file. Accordingly, the Board finds there has not been full compliance with the Board's January 2013 remand and the claim must once again be remanded. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claim file the report of the May 2015 MRI. All efforts to obtain the requested record should be clearly documented in the claim file. 2. The AOJ should return he file to the examiners who conducted the January 2013 examiner and/or the June 2015 VA examinations, and request that they review the claim file and specifically discuss his 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 must specifically state whether the evidence noted herein changes his opinion in any way as to whether the Appellant has any form of spina bifida. The examiner should ensure the examination report contains a detailed rationale for any opinions proffered in conjunction with this request. 3. 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 2014). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).