Citation Nr: 19106945
Decision Date: 01/29/19	Archive Date: 01/29/19

DOCKET NO. 13-17 189
DATE:	January 29, 2019

REMANDED

Entitlement to benefits under 38 U.S.C. § 1805 for a child born with spina bifida is remanded.

REASONS FOR REMAND

The Veteran had service from September 1969 to April 1971, including service in Vietnam from March 1970 to April 1971.  The appellant is the Veteran’s adult daughter.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 decision letter of the Department of Veterans Affairs (VA) Regional Office (RO).  

The appellant testified at an April 2017 hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

The case was previously before the Board in September 2017, at which time the claim was denied.  The appellant appealed the Board’s September 2017 decision to the U.S. Court of Appeals for Veterans Claims (Court).  In June 2018, his representative and VA’s Office of General Counsel, representing the Secretary of VA, filed a Joint Motion requesting that the Court vacate the Board’s decision and remand the case for readjudication in compliance with the directives specified.  The Court issued an order that same month granting the Joint Motion, and returned the case to the Board.

At the April 2017 Board hearing, the appellant’s representative asserted that an October 1980 Shriner’s Hospital for Children record documented a diagnosis of spina bifida.  Although a copy of the October 1980 Shriner’s Hospital record is in the electronic claims file, the record was submitted by the appellant, and was not obtained by VA directly from the hospital.  In the copy of record, it appears the words “five, spina bifida” were inserted into the document.  As noted in the Joint Motion, a remand is required to allow VA to obtain authorization and independently request the appellant’s complete Shriner’s Hospital records directly from the hospital.  

As noted in the Joint Motion, at the April 2017 Board hearing, the appellant’s representative asserted that meningocele is a type of spina bifida that does not fall under the occulted definition.  The representative stated that a definition of meningocele had been submitted for the Board’s review the week prior to the hearing, and that it should be on file soon.  As the electronic claims file does not contain the record referenced by the representative at the hearing, an attempt should be made to obtain the record.  

The matter is REMANDED for the following action:

1.  Request that the appellant complete a VA Form 21-4142 for the Shriner’s Hospital for Children, including treatment records from October 1980.  Make two requests for the authorized records from the Shriner’s Hospital for Children unless it is clear after the first request that a second request would be futile.

2.  Attempt to obtain the meningocele definition referenced by the appellant’s representative at the April 2017 Board hearing, to include requesting the record from the appellant and her representative.  

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	K. Marenna, Counsel