Citation Nr: 1753929 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 12-08 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a monthly allowance in excess of Level 1 under 38 U.S.C. § 1805 for a child born with spina bifida. ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from November 1965 to July 1969, with service in the Republic of Vietnam from January 1968 to February 1969, where he earned the Combat Action Ribbon. The Veteran has passed away. The Appellant in this case is the Veteran's surviving child, who has been awarded a monthly allowance under 38 U.S.C. § 1805 as a child born with spina bifida. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which continued the Appellant's monthly allowance at the Level 1 amount; the Appellant timely appealed the assigned monthly allowance amount. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND In an April 2011 notice of disagreement and an April 2012 substantive appeal, VA Form 9, the Appellant indicated that she had bowel and bladder issues, for which she was taking medications. Based on these statements, the Board finds that a remand is necessary in order to obtain a VA examination respecting the current severity of the Appellant's condition. See 38 C.F.R. § 3.814(d)(3) (2017). Additionally, in February and March 2011, the Appellant appears to have applied for educational benefits, and was told by VA to contact Vocational Rehabilitation and Counseling office. Furthermore, authorizations for release of private medical records for Drs. D.D. and R.C. are of record, although it does not appear that any attempt to obtain those records were made by VA. Accordingly, as it appears that there are outstanding VA records and private treatment records which have been identified by the Appellant. On remand attempts to obtain those records and associate them with the claims file should be made. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all VA treatment records from any VA Medical Centers that may have treated the Appellant and associate those documents with the claims file. In the event of a negative search, if it is determined that additional requests would be futile, then a memorandum of unavailability should be added to the record. 2. Obtain all of the Appellant's VA Vocational Rehabilitation and Vocational Counseling records, if such exist, and associate those documents with the claims file. In the event of a negative search, if it is determined that additional requests would be futile, then a memorandum of unavailability should be drafted and added to the record. 3. Ask the Appellant to identify any private treatment that she may have had for her spina bifida condition, which is not already of record, including Drs. D.D. and R.C (use full names as specified in the May 2011 VA Form 21-4142s). After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Appellant should be notified so that she can make an attempt to obtain those records on her own behalf. The Appellant is reminded that a failure to provide the private medical records or to provide proper authorization forms respecting consent for VA to assist her in obtaining those records may result in the denial of her claim. 4. Schedule the Appellant for appropriate VA examination(s) that addresses the applicable criteria for evaluating the Appellant's spina bifida condition for which she receives a monthly allowance. The applicable criteria under 38 C.F.R. § 3.814(d)(1) is as follows: Level I: The individual is able to walk without braces or external support as primary means of mobility in the community; no sensory or motor impairment of upper extremities due to spina bifida; IQ of 90 or higher, AND continent of urine and feces without medication or other means to control incontinence. Level II: The individual is able to walk with braces or external support as primary means of mobility in community; OR has sensory or motor impairment of upper extremities but can grasp pen, feed self and perform self care; OR IQ of 70 to 89, OR requires medication or other means to control urinary bladder impairment and no more than two times per week is unable to remain dry for minimum 3 hours at a time during waking hours, OR requires bowel management techniques or other treatment to control effects of bowel impairment, but no fecal leakage severe/frequent enough to require absorbent materials at least 4 days per week, OR has colostomy not requiring a bag. Level III: The individual's primary means of mobility in the community is a wheelchair; OR has sensory or motor impairment of upper extremities severe enough to prevent grasping a pen, feeding self and performing self care; OR IQ of 69 of less; OR despite medication or other means to control effect of urinary bladder impairment, at least three times per week cannot remain dry for 3 hours at a time during waking hours; OR despite bowel management or other treatment to control effects of bowel impairment, has fecal leakage severe/frequent enough to require wearing absorbent materials at least 4 days per week; OR regularly requires manual evacuation or digital stimulation to empty bowel; OR has colostomy requiring bag. The claims folder must be made available to and be reviewed by the examiner. All diagnostic testing deemed necessary, should be conducted and the results reported in detail. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 5. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Appellant's claim for increased monthly allowance under 38 U.S.C. § 1805 for a child born with spina bifida. If the benefits sought on appeal remain denied, the Appellant, and any representative, should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Appellant has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (2012). _________________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).