Citation Nr: 18155970 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-27 578A DATE: December 6, 2018 REMANDED Entitlement to benefits under 38 U.S.C. § 1805 for a child born with spina bifida. Entitlement to benefits under 38 U.S.C. § 1815 for a child born with birth defects. REASONS FOR REMAND The Veteran served on active duty from December 1967 to December 1968. The appellant is the Veteran’s biological daughter. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant has asserted that her father served in Vietnam and was exposed to toxic herbicide agents while serving aboard the USS W. L. Lind (DD-703) in the official waters of the Republic of Vietnam during the Vietnam War era. On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As will be explained below, the Board has determined that further development is needed to verify the appellant’s mother’s service and to determine the nature of the appellant’s disability. As such development could result in an award of benefits to the appellant without needing to reach questions regarding the nature of the Veteran’s service, the Board has decided not to stay these matters at this time. In a March 2018 statement, the appellant indicated her mother may have served in the Air Force. As the appellant has claimed she has birth defects, an attempt should be made to verify the appellant’s mother’s service, including any service in Vietnam. If the appellant’s mother had service in Vietnam, the appellant should be provided with a VA examination to identify any diagnosed birth defects. Also, a VA examination is necessary to address whether the appellant has a diagnosis of spina bifida, other than spina bifida occulta. For purposes of benefits under 38 U.S.C. § 1805, “the term “spina bifida” means any form and manifestation of spina bifida except spina bifida occulta.” 38 U.S.C. § 1802; 38 C.F.R. § 3.814(c)(4). An October 2014 private treatment record noted a past medical history of spina bifida occulta. A July 2016 private treatment record indicates a diagnosis of spina bifida. As the evidence indicates the appellant may have been diagnosed with spina bifida, an examination is necessary to address whether the appellant has a diagnosis of spina bifida, other than spina bifida occulta. In a January 2015 letter, the Veteran stated that he is on the Agent Orange registry. He also indicated that he is 100 percent service connected. Since his statement indicates there may be additional evidence in his claims file pertinent to the appellant’s claim regarding the nature of the Veteran’s service, his claims file should be obtained and any relevant documents should be associated with the appellant’s claims file to ensure there is a complete record in the appellant’s case. The matter is REMANDED for the following action: 1. Obtain any separate claims file belonging to the Veteran, and ensure that all relevant documents are in the appellant’s claims file. 2. Attempt to verify the appellant’s mother’s service, including whether she served in Vietnam during the Vietnam War era. 3. Schedule the appellant for an examination by an appropriate clinician to determine the nature and etiology of the appellant’s spina bifida 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. If the appellant’s mother had verified service in Vietnam, identify all diagnosed birth defects, other than spina bifida. 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