Citation Nr: 1806764 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 08-31 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for spina bifida, to include entitlement to benefits for spina bifida under 38 U.S.C. § 1805 based on the Veteran's father's service in the Republic of Vietnam; to include also as secondary to spinal meningitis. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from June 1991 to August 1993, with additional Reserve and National Guard service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2010, the Veteran withdrew her request for a hearing at the RO. The hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.704(e). In February 2012 and July 2015, the Board remanded this matter for further development. Notably, the July 2015 Board remand expanded the Veteran's claim for service connection for spina bifida to encompass her claim of entitlement to a monetary allowance under 38 U.S.C. § 1805 for a child of a Vietnam Veteran born with spina bifida. Noting that when a claimant makes a claim, she is seeking service connection for her identified symptoms regardless of the label or diagnosis that she, as a layperson, attaches to those symptoms. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Ingram v. Nicholson, 21 Vet. App. 232, 256 (2007) (Veterans are not subject to a strict pleading standard). The 38 U.S.C. § 1805 portion of the claim is addressed below. The issue of entitlement to service connection for spina bifida, to include as secondary to spinal meningitis is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's biological father had military service in the Republic of Vietnam during the Vietnam era. 2. The Veteran was born in June 1971; her conception was after her father's initial tour in Vietnam. 3. There is competent evidence that, during this appeal, the Veteran has demonstrated a form or manifestation of spina bifida other than spina bifida occulta. CONCLUSION OF LAW The criteria for entitlement to benefits for spina bifida under 38 U.S.C. § 1805 for an individual whose biological father is a Vietnam Veteran are met. 38 U.S.C. §§ 1802, 1805, 5107 (2012); 38 C.F.R. § 3.814 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). Legal Criteria, Factual Background and Analysis Initially the Board must address the Veteran's claim for benefits pursuant to 38 U.S.C. Chapter 18 based on her father's service in Vietnam. She contends, in essence that her spine disability, to include degenerative disc disease, chronic pain, spinal stenosis and related neurological disorders, are as a result of her father's (a Vietnam Veteran) exposure to Agent Orange. VA will provide certain benefits, including monthly monetary allowance, for an individual who suffers from a form or manifestation of spina bifida, except spina bifida occulta, and whose biological father or mother is a Vietnam Veteran or had covered service in Korea. See 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814. Additionally, VA will provide certain benefits for an individual with disability from certain birth defects whose mother is a Vietnam Veteran. See 38 U.S.C. §§ 1812, 1815; 38 C.F.R. § 3.815. VA's General Counsel has clarified, citing to pertinent medical literature, that the term spina bifida is a type of neural tube defect, which is a category of birth defects that involves incomplete development of the brain, spinal cord, and/or the protective coverings of those organs. Spina bifida is generally considered to encompass three main conditions: spina bifida occulta; meningocele; and myelomeningocele. The term "spina bifida" is commonly defined as referring to a "defective closure of the bony encasement of the spinal cord"; it does not include other neural tube defects, such as encephalocele and anencephaly. VAOPGCPREC 5-99 (May 1999) (internal quotation marks and citations omitted). Consistent with this guidance, for the purposes of Chapter 18, VA defines spina bifida as "any form or manifestation of spina bifida except spina bifida occulta." 38 U.S.C. § 1802; 38 C.F.R. § 3.814(c)(4); Jones v. Principi, 16 Vet. App. 219, 225 (2002). At the outset, the Board notes that neither the Veteran nor her mother contends that her mother served in the military, to include in Vietnam. The Veteran's claim, in this regard, is based solely on her father's military service. As such, the provisions covering birth defects whose mother is a Vietnam Veteran do not apply and will not be discussed, and spina bifida is the only birth defect for which monetary benefits are available based on the Veteran's biological father's exposure to Agent Orange during his service in Vietnam. The RO has conceded that the Veteran's father served in Vietnam. A September 2007 report from the National Personnel Records Center shows the Veteran's father served in Vietnam from August 1966 to August 1967 and from August 1972 to March 1973. The Veteran's birth certificate verifies who her father is and that the Veteran was born in July 1971, which was after her father served his first tour in Vietnam. Medical evidence has been submitted in support of the claim that the Veteran has received treatment for spina bifida. Specifically, an August 2004 private surgical pathology report referenced the Veteran having a specimen labeled meningocele of the lower back and pre-operative diagnoses of tethered spinal cord and coccygeal lipoma. The final diagnosis was meningocele of the lower back. Furthermore, the medical evidence includes a disability determination from Dr. R.S.M. dated April 2006 that notes the Veteran has had an apparent mild case of spina bifida and a tethered spinal cord. In an April 2007 statement, the Veteran's mother noted that she noticed an opening on the Veteran's lower back when she was born in 1971. She stated that she asked a doctor about "the strange hole" in the lower back and was told that it would eventually close. She learned later that it was spina bifida. A February 2008 VA physical medicine and rehabilitation physical therapy report, reveals a diagnosis of spina bifida (now with gait problems). The Veteran reported worsening of intense pain. The assessment was lower extremity weakness and gait abnormality due to meningocele. In a March 2008 VA anesthesiology preoperative report it was noted that the Veteran has a history of spina bifida; she had a pinhole tract at birth, which was not diagnosed. It was further noted that she had surgery in 2004 to repair spina bifida defect. The foregoing shows there is competent medical evidence that specifically describe the Veteran as having meningocele of the lower back, which is a form or manifestation of spina bifida for which entitlement to benefits under 38 U.S.C. § 1805 for spina bifida is allowed. The Board acknowledges that the Veteran has received diagnoses of spina bifida occulta, not considered a form or manifestation of spina bifida and not service-connectable. On September 2007 VA spine examination, the examiner diagnosed spina bifida occulta with history of tethered cord and degenerative disc disease with chronic pain, bilateral lower extremity radiculopathy, urinary retention and bilateral lower extremity weakness. The Veteran had a CT [computed tomography] myelogram that showed S1-2 spina bifida occulta. A March 2008 VA outpatient progress report reveals an impression of neuropathic pain, low back and right leg primarily spina bifida occulta. In a March 2008 VA outpatient treatment report, the Veteran requested a change in diagnosis from spina bifida occulta to spina bifida with meningocele, claiming she had a tract in her lumbar area from birth. On July 2017 VA back conditions disability benefits questionnaire (DBQ) the diagnosis was congenital spina bifida occulta. The Board finds that the 2007 VA examination, the March 2008 VA outpatient progress report and the July 2017 DBQ are not conclusive as to this matter, as the earlier assessment of meningocele of the lower back or form or manifestation of spina bifida was not considered by the examiners. This assessment, even if not shown on the most recent examination, was made during the pendency of the appeal. See McClain v. Nicholson, 21 Vet.App. 319 (2007). Considering the totality of the evidence and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran had a disability during the pendency of this appeal that can be considered within the purview of 38 U.S.C. § 1802 as a form and manifestation of spina bifida. Therefore entitlement to benefits for spina bifida under 38 U.S.C. § 1805 based on the Veteran's father's service in the Republic of Vietnam is granted. ORDER Entitlement to benefits under 38 U.S.C. § 1805 for spina bifida based on the Veteran's father's service in Vietnam is granted. REMAND Regarding the claim of entitlement to service connection for spina bifida, including as secondary to spinal meningitis, remand is required to secure an adequate VA examination and opinion. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Pursuant to Board remand, in July 2017 VA afforded the Veteran an examination and obtained a medical opinion with respect to her spina bifida disability. The examiner's opinion regarding the Veteran's spina bifida is inadequate for deciding this claim. As of this decision, it has been determined that the Veteran has a form or manifestation of spina bifida, other than spina bifida occulta. The July 2017 opinion is inadequate as it was predicated on an inaccurate factual premise. For instance, the examiner rendered a diagnosis of congenital spina bifida occulta, diagnosed in 2003/2004. The evidence of record does not support such a diagnosis within either year. It was noted in a February 2008 VA internal medicine resident report that the Veteran was seen with a history of spina bifida (not spina bifida occulta) in 2003. In 2004, the diagnosis was meningocele of the lower back (not spina bifida occulta). Moreover, the VA examiner did not address the evidence of record that supported a diagnosis of spina bifida (other than occulta). See McClain, supra. For these reasons, remand is required to secure an adequate VA examination and opinion of the Veteran's diagnosed spina bifida. Further, the Board finds that an additional VA examination is required as the evidence is unclear whether the Veteran's spina bifida was aggravated beyond its natural progression by active service as a superimposed disease or injury that aggravated her spina bifida. The September 2007 VA examiner diagnosed her with spina bifida occulta with history of tethered cord and degenerative disc disease with chronic pain, bilateral lower extremity radiculopathy, urinary retention and bilateral lower extremity weakness. The July 2017 VA examiner diagnosed congenital spina bifida occulta. Both examiners based the opinion rendered on the Veteran having congenital spina bifida occulta and did not consider meningocele of the lower back, which is considered a form or manifestation of spina bifida, which was diagnosed in 2004. Thus, the Board finds that there is insufficient competent medical evidence on file to make a decision on this issue and must therefore remand to obtain an additional medical opinion regarding the Veteran's spina bifida that is a result of, or was aggravated during, her time in service. See 38 C.F.R. § 4.2 (where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes). Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule the Veteran for an appropriate VA examination to determine the nature, extent, onset and etiology of her spina bifida. The claims file and a copy of this Remand should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should state the likelihood that the Veteran has a back disability, to include spina bifida, which existed prior to service. If the examiner concludes that the Veteran's back disability, to specifically include spina bifida, clearly and unmistakably existed prior to service, the examiner should indicate whether that the disability clearly and unmistakably did NOT worsen beyond natural progression during service. If the examiner diagnoses the Veteran as having a back disability, to specifically include spina bifida that did not clearly and unmistakably pre-exist service, the examiner must opine as to whether it is at least as likely as not that (a 50 percent or greater probability) the condition is related to or had its onset during service. In offering an opinion, the examiner should specifically acknowledge and comment on the Veteran's competent and credible report of a recurrent back pain since service. The examiner should include discussion of the Veteran's documented medical history to include her diagnosis of spina bifida (other than spina bifida occulta), her in-service complaints of back pain in February 1993 and April 1993 and the July 1995 United States Army Hospital record. As well as whether her currently diagnosed disorders of degenerative disc disease with chronic pain, bilateral lower extremity radiculopathy, urinary retention, and bilateral lower extremity weakness are as a result of her spina bifida being aggravated during service. The rationale for all opinions expressed should be set forth in a legible report. 2. After the above development has been completed, readjudicate the issue on appeal. If the benefit sought remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs