Citation Nr: 1808812 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-00 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to benefits under 38 U.S.C. § 1805 for a child born with spina bifida. WITNESSES AT HEARING ON APPEAL Appellant and the Veteran ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1969 and had service in Vietnam from March 1968 to March 1969. The appellant is the Veteran's biological son and was born in July 1970, after the Veteran's Vietnam service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant and the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in January 2018. A transcript of this proceeding has been associated with the claims file. With regard to representation, the Board notes that the appellant was represented by Veterans of Foreign Wars during the January 2018 Board hearing. However, this was in error. Significantly, the Veteran (i.e., the appellant's father) submitted a VA Form 21-22 appointing Veterans of Foreign Wars as the appellant's representative in August 2016. Unfortunately, this was not signed by the appellant and, in October 2017 correspondence, the RO informed the appellant that the August 2016 VA Form 21-22 was signed by the Veteran and not the appellant and, thus, such appointment was not valid. As such, the appellant is proceeding pro se. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND According to the applicable law and regulations, VA shall pay a monthly allowance, based upon the level of disability, to or for a child who has been determined to be suffering from spina bifida and who is a child of a Vietnam veteran. 38 U.S.C. § 1805(a) (2014); 38 C.F.R. § 3.814(a) (2017). "Spina bifida" includes all forms and manifestations of spina bifida except spina bifida occulta (38 U.S.C. § 1802; 38 C.F.R. § 3.814(c)(3)), and is the only birth defect which warrants the award of monetary benefits based on the herbicide exposure of a male veteran. The appellant and the Veteran contend that the appellant was born with spina bifida resulting in a hole in the appellant's back. While they were unable to submit any medical treatment records confirming this diagnosis, they submitted several lay statements from individuals noting the diagnosis of spina bifida upon the appellant's birth. During the course of this appeal, the appellant submitted a November 2011 private X-ray of the lumbar spine showing a diagnosis of spina bifida occulta. The appellant also submitted photographs showing what appears to be a large scar on his back in January 2012. Also, in December 2017 correspondence, Dr. F.O., who reportedly began treating the appellant when he was only two weeks old, wrote that the appellant was born with spina bifida and sent home with an open spine. During the January 2018 Board hearing, the Veteran testified that the hole in the appellant's back miraculously healed when the appellant was 18 months old but that the appellant continued to experience residuals of the spina bifida he had had since birth. In VAOPGCPREC 5-99, VA's General Counsel held that 38 U.S.C. § 1802, Chapter 18 of Title 38, United States Code, applies to all forms of spina bifida other than spina bifida occulta, and that for purposes of that chapter the term "spina bifida" refers to a defective closure of the bony encasement of the spinal cord but does not include other neural tube defects such as encephalocele and anencephaly. However, 38 U.S.C. § 1802 only states that the provisions pertaining to "spina bifida" apply to all forms and manifestations of spina bifida except spina bifida occulta (emphasis added). The Court has found that VAOPGCPREC 5-99 is not necessarily binding on VA adjudicators in addressing this issue. See Jones v. Principi, 16 Vet. App. 219 (2002) (holding that the VA Office of General Counsel failed in VAOPGCPREC 5-99 to address what the broader term "forms and manifestations of spina bifida" encompasses and that the Board erred in relying solely upon the definition of spina bifida set forth in the General Counsel opinion). Here, from the medical evidence in the claims file, it may not be conclusively determined whether or not the appellant has had a "form" or "manifestation" of spina bifida, or residuals thereof, during the appeal period, and a medical opinion in this matter is indicated. Notably, the appellant has not been afforded a VA examination. See also 38 C.F.R. § 3.814(d)(3). Accordingly, the case is REMANDED for the following action: 1. Arrange for the appellant to be examined by an appropriate clinician to determine whether it is at least as likely as not that the appellant has a form or manifestation of spina bifida, or residuals thereof, (other than spina bifida occulta) during the appeal period beginning December 2010. The numerous lay statements and the December 2017 statement from Dr. F.O. showing a diagnosis of spina bifida since birth as well as the November 2011 X-ray showing a diagnosis of spina bifida occulta should be reviewed by the examiner in conjunction with the examination, and any indicated tests or studies should be completed. The examiner should explain the rationale for the opinion given. 2. Readjudicate the claim. 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 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. §§ 5109B, 7112 (2014). _________________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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) (2017).