Citation Nr: 18145608 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 14-38 772A DATE: October 29, 2018 ORDER New and material evidence having been received, the claim for entitlement to benefits under 38 U.S.C. § 1805 for spina bifida is reopened; to this extent only the appeal is granted. REMANDED Entitlement to benefits under 38 U.S.C. § 1805 for spina bifida is remanded. FINDINGS OF FACT 1. The appellant’s claim for entitlement to benefits under 38 U.S.C. § 1805 for a child born with spina bifida was previously denied in a February 1998 decision; the appellant did not appeal the decision documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. The evidence added to the record after the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The February 1998 decision denying entitlement to benefits under 38 U.S.C. § 1805 for a child born with spina bifida is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for entitlement to benefits under 38 U.S.C. § 1805 for a child born with spina bifida. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to January 1969, including service in Vietnam. The appellant is the Veteran’s daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Whether new and material evidence has been received to reopen a claim for entitlement to benefits under 38 U.S.C. § 1805 for spina bifida A claim for entitlement to benefits under 38 U.S.C. § 1805 for a child born with spina bifida was originally denied in a February 1998 rating decision because the appellant failed to submit medical evidence describing her claimed spina bifida disability. The RO notified the appellant of the decision and enclosed a form, VA Form 4107, describing her rights. The appellant did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Here, the evidence received since the February 1998 decision includes medical evidence indicating the appellant has been diagnosed with spina bifida, including a November 2011 statement from a physician, and September 2012 statements from the appellant’s grandmother and aunt stating that she was diagnosed with spina bifida at birth. These are material in that they indicate the appellant has a diagnosis of spina bifida. To be eligible for benefits, evidence of a diagnosis of spina bifida, other than spina bifida occulta, must be shown. This evidence was not before adjudicators when the appellant’s claim was last denied in February 1998, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. REASONS FOR REMAND On the reopened issue of entitlement to benefits under 38 U.S.C. § 1805 for spina bifida, the Board cannot make a fully-informed decision as to whether the appellant has a diagnosis of spina bifida, other than spina bifida occulta. For a child of a Vietnam veteran, Congress has authorized VA to pay a monthly allowance, based upon the level of disability, to or for a child who had been determined to be suffering from spina bifida. 38 U.S.C. § 1805(a); 38 C.F.R. § 3.814(a). The term “spina bifida,” in the context of this law, is defined as “all forms and manifestations of spina bifida except spina bifida occulta.” 38 U.S.C. § 1802. See Jones v. Principi, 16 Vet. App. 219 (2002) (holding that the plain language of 38 U.S.C. § 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). The appellant’s father served in Vietnam during the Vietnam War era. The November 2011 letter from J.H., D.O., reflects that the appellant was diagnosed with spina bifida. An August 2011 private MRI report reflects that the appellant was diagnosed with diastematomyelia with associated complex congenital abnormalities of the lower thoracic and upper lumbar spine. A March 2012 private treatment record from a physician reflects that the appellant has “a spinal anomaly known as diastematomyelia as well as spina bifida occulta.” In the September 2012 statement, the appellant’s grandmother stated that when the appellant was born, the physician announced she had classic spinal bifida in the lower lumbar/ and club foot. She stated that the appellant had surgery to lengthen the tendon of the club foot when she was one. As the March 2012 private treatment record indicates the appellant has spina bifida occulta, it is unclear from the evidence of record whether the appellant has a diagnosis of spina bifida, other than spina bifida occulta. Therefore, the claim must be remanded for a VA examination and opinion. The matters are REMANDED for the following actions: Schedule the appellant for an examination by an appropriate clinician to determine the nature and etiology of the appellant’s spinal condition. The examiner must opine whether it is at least as likely as not (50 percent or greater possibility) that the appellant had spina bifida, but not spina bifida occulta, at birth. The physician should discuss the significance, if any, of the appellant’s diagnosis of club foot at birth which required surgical correction, and her diagnosed low back disabilities, including diastematomyelia. The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Marenna, Counsel