Citation Nr: 1609240 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 01-03 511A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a monetary allowance under 38 U.S.C.A. § 1805 for a Vietnam Veteran's child, J.E.H., on account of spina bifida. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from April 1968 to April 1970, including in the Republic of Vietnam. This case has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a November 2000 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran disagreed with this decision later in November 2000. He perfected a timely appeal in April 2001. A Travel Board hearing was held at the RO in July 2001 before a Veterans Law Judge (VLJ) and a copy of the hearing transcript has been added to the record. In December 2001, the Board denied the claim of entitlement to a monetary allowance under 38 U.S.C.A. § 1805 for a Vietnam Veteran's child, J.E.H., on account of spina bifida. (The Board notes parenthetically that, because the Veteran filed a new claim of entitlement to a monetary allowance under 38 U.S.C.A. § 1805 for a Vietnam Veteran's child, N.G., on account of spina bifida, in October 2014, it has recharacterized the currently appealed claim to include the initials of the child for whom the Veteran seeks a monetary allowance.) Both the Veteran, through an attorney, and VA's Office of General Counsel (OGC) appealed the Board's December 2001 decision to the United States Court of Appeals for Veterans Claims (Court). In October 2002, the Court granted a Joint Motion for Remand (or JMR) ("First JMR") vacating and remanding the Board's December 2001 decision. The Board remanded this appeal to the Agency of Original Jurisdiction (AOJ) in November 2004. In August 2005, the Board informed the Veteran that the VLJ who held his hearing in July 2001 was no longer employed by the Board and offered him another hearing before a different VLJ who would decide the case. Later that month, the Veteran informed the Board that he did not want another hearing. Thus, his Board hearing request is deemed satisfied. See 38 C.F.R. § 20.704 (2015). In November 2005, the Board again denied the claim of entitlement to a monetary allowance under 38 U.S.C.A. § 1805 for a Vietnam Veteran's child, J.E.H., on account of spina bifida. Both the Veteran, through an attorney, and OGC filed another JMR ("Second JMR") with the Court. In January 2007, the Court granted the Second JMR and vacated and remanded the Board's November 2005 decision. In July 2007, the Board again remanded this case to the AOJ. The Board observes that, although this matter arises from an appeal filed with the Jackson, Mississippi, RO, all spina bifida claims now fall under the jurisdiction of the RO in Denver, Colorado. Accordingly, the RO in Denver, Colorado, has jurisdiction and is considered the AOJ in this appeal. In January 2010, the Board again denied the claim of entitlement to a monetary allowance under 38 U.S.C.A. § 1805 for a Vietnam Veteran's child, J.E.H., on account of spina bifida. Both the Veteran , through an attorney, and OGC filed another JMR ("Third JMR") with the Court. In November 2010, the Court granted the Third JMR and vacated and remanded the Board's January 2010 decision. In February 2012, the Board again remanded this case to the AOJ. In January 2013, the Board again denied the claim of entitlement to a monetary allowance under 38 U.S.C.A. § 1805 for a Vietnam Veteran's child, J.E.H., on account of spina bifida. In October 2014, the Veteran, through an attorney, appealed the Board's January 2013 decision to the Court. In April 2015, the Court reversed the Board's January 2013 finding that VA had met its duty to assist the Veteran and vacated and remanded the Board's January 2013 decision. The issue of entitlement to a monetary allowance under 38 U.S.C.A. § 1805 for a Vietnam Veteran's child, N.G., on account of spina bifida has been raised by the record in a statement included on a VA Form 21-4138 filed by the Veteran in October 2014 but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over this claim and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. In January 2016, the Veteran, through his attorney, notified the Board that he wanted his appeal remanded to the AOJ. Pursuant to the Veteran's election in January 2016, this appeal is REMANDED again to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to a monetary allowance under 38 U.S.C.A. § 1805 for a Vietnam Veteran's child, J.E.H., on account of spina bifida. He specifically contends that his in-service herbicide exposure while on active service in the Republic of Vietnam (which has been conceded by VA) caused or contributed to his son developing symptoms consistent with spina bifida following a hypoxic event which occurred when he was 9 months old. The Board acknowledges that this claim has been on appeal since 2001 and has been remanded to the AOJ on multiple occasions, most recently in February 2012. The Board notes in this regard that the Veteran himself elected not to waive AOJ review of additional evidence submitted in support of his claim in January 2016 and requested that the Board remand his currently appealed claim to the AOJ. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). In its April 2015 decision, the Court specifically reversed the Board's January 2013 finding that all relevant evidence had been obtained and VA's duty to assist the Veteran had been satisfied pursuant to the VCAA. See [redacted] v. McDonald, No. 14-653 (Vet. App. April 30, 2015), at pp. 4-5. The Court found that VA had not attempted to obtain potentially relevant records identified by the Veteran on a VA Form 21-4138 received by the AOJ in June 2008. Id. The Court remanded this appeal to the Board for a determination of whether the records identified on this form by the Veteran were relevant to the currently appealed claim and, if so, attempt to obtain them. Id. A review of the June 2008 VA Form 21-4138 indicates that the Veteran requested that VA attempt to obtain records from the Social Security Administration (SSA), Dr. Owen Evans, and Dr. Ronald Powell. A review of the Record on Appeal submitted to the Court suggests that medical records for his son, J.E.H., from Dr. Owen Evans have been obtained and associated with his voluminous claims file. As the Court stated in its April 2015 decision, however, there is no indication that VA attempted to obtain records from either of the providers or from SSA which were identified on the June 2008 VA Form 21-4138. It also is not clear from a review of this VA Form 21-4138 whether the Veteran was asking VA to obtain his own SSA records or SSA records pertaining to his son. Because the Veteran seeks a monetary allowance under 38 U.S.C.A. § 1805 for a Vietnam Veteran's child, J.E.H., on account of spina bifida, the Board finds it reasonable to conclude that he was authorizing VA to attempt to obtain the SSA records for his son when he submitted the VA Form 21-4138 in June 2008. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."). The Board notes in this regard that VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). As noted in the Introduction, the Veteran, through his attorney, elected not to waive AOJ review of additional evidence submitted in support of his claim in January 2016 and requested that the Board remand his currently appealed claim to the AOJ. Accordingly, and because it is bound by the Court's April 2015 decision, the Board finds that, on remand, the AOJ must contact the Veteran and request updated authorizations in order to attempt to obtain medical records for his son from Dr. Owen Evans, Dr. Robert Powell, and from SSA, including any administrative decision(s) on his son's application for SSA disability benefits and all underlying medical records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his attorney and request that he identify all VA and non-VA clinicians who have treated his son, [redacted], DOB March [redacted], 1985, for symptoms consistent with spina bifida following a hypoxic event which occurred when he was 9 months old. Advise the Veteran that updated releases are needed in order for VA to obtain records for his son's medical treatment from Dr. Owen Evans and from Dr. Robert Powell. Once signed releases are received from the Veteran, obtain all private treatment records for his son which have not been obtained already, to include any records which may be available from Dr. Owen Evans or Dr. Robert Powell. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Contact the Social Security Administration (SSA) and obtain the complete SSA records for the Veteran's son, [redacted], DOB March [redacted], 1985, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records. If these records are not available, then a negative reply is requested. Do not request the Veteran's SSA records. A copy of any request(s) sent to SSA for the complete SSA records for the Veteran's son, and any reply, to include a negative reply or any records obtained, should be included in the claims file. 3. Thereafter, review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the AOJ should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his attorney. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ DEBORAH W. SINGLETON 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) (2015).