Citation Nr: 19158232 Decision Date: 07/30/19 Archive Date: 07/26/19 DOCKET NO. 10-00 198 DATE: July 30, 2019 ORDER Benefits under 38 U.S.C. §§ 1805 and 1815 for a child born with spina bifida or other covered birth defects is denied. FINDING OF FACT 1. The appellant’s mother is not a Vietnam Veteran. 2. The appellant does not have spina bifida. CONCLUSION OF LAW 1. The criteria for establishing benefits under the provisions of 38 U.S.C. § 1815 for a child of a female Vietnam Veteran born with covered birth defects have not been met. 38 U.S.C. §§ 1811, 1812, 1815 (2012); 38 C.F.R. § 3.815 (2018). 2. The criteria for establishing benefits under the provisions of 38 U.S.C. § 1805 for a child born with spina bifida have not been met. 38 U.S.C. §§ 1802, 1805 (2012); 38 C.F.R. § 3.814 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from January 1956 to January 1959 and in the U.S. Marine Corps from March 1959 to September 1975. He served in the Republic of Vietnam from December 1965 to May 1966. The appellant is the Veteran’s biological daughter. She served in the U.S. Army from September to November 1988. In February 2011, the appellant testified at a Board hearing before a Veterans Law Judge (VLJ) no longer with the Board; in May 2017, she testified at a Board hearing before the undersigned VLJ. In August 2017, the Board denied entitlement to benefits under 38 U.S.C. § 1805 for a child born with spina bifida. The appellant subsequently appealed to the United States Court of Appeals for Veterans’ Claims (Court). In November 2018, the Court granted the Parties’ Joint Motion for Remand (JMR); vacated the August 2017 Board decision; and remanded the appeal to the Board. The Court remanded the appeal because the Board did not wait a full 90 days to issue its decision after sending its letter informing the appellant that her appeal had been placed on the Board’s docket. Following remand by the Court, the Board sent an additional letter in January 2019 informing the appellant that her appeal had been returned to the Board and that she had 90 days to submit additional arguments or evidence. This decision is being issued more than 90 days after the January 2019 letter. Additionally, the appellant requested copies of any new evidence added to her file since the Court remanded the appeal. All evidence added to the file since the August 2017 JMR was submitted directly by the appellant. Therefore, the Board will move forward with adjudicating the appellant’s claim. The Board notes that the appellant was granted benefits for spina bifida in November 1997, which were terminated in October 2000; her appeal of the original termination was withdrawn in September 2002. The Board also notes that it previously characterized the appellant’s claim to be on appeal from a January 2009 rating decision. However, as outlined in the extensive procedural history in the Board’s June 2012 remand, the appellant filed a timely notice of disagreement (NOD) for a June 2003 (stated as July 2003) rating decision, for which a statement of the case (SOC) was not issued until November 2009. Accordingly, the claim is properly characterized as on appeal from June 2003. Entitlement to benefits under 38 U.S.C. §§ 1805 or 1815 for birth defects of a child born to a Vietnam Veteran. Legal Criteria VA will provide certain benefits for an individual with spina bifida whose biological father or mother is a Vietnam Veteran. See 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814. 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). 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. VAOPGCPREC 5-99; but see Jones v. Principi, 16 Vet. App. 219 (2002). To qualify for a monthly allowance for birth defects other than spina bifida, the appellant must show that the Vietnam Veteran who was exposed to herbicide agents is his or her mother. 38 U.S.C. §§ 1812, 1815; 38 C.F.R. § 3.815. Spina bifida is the only birth defect which warrants an award of monetary benefits based on the herbicide agent exposure of a Vietnam Veteran who is the father of the child at issue. See Jones, 16 Vet. App. at 219. The term Vietnam Veteran means a person who performed active military service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, without regard to the characterization of the person’s service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.814(c)(1). Service in the Republic of Vietnam also includes service within the 12 nautical mile territorial sea of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). Factual Background The record indicates that the Veteran served in Vietnam. The appellant is his biological daughter conceived after his return from Vietnam. The appellant has not contended that her mother is a Vietnam Veteran. Records from the appellant’s June 1967 birth repeatedly state a diagnosis of pilonidal sinus. In April 1973, the appellant underwent a cystoscopy and urethral dilation, and was diagnosed with recurrent urinary tract infections and urethral meatal stenosis. During the appellant’s July 1988 physical examination for service entrance, her low back was marked for further review but, thereafter, was stated to be normal. On a report of medical history at service entrance, the appellant reported that she was born with spina bifida, but that it was asymptomatic. No diagnosis of spina bifida was advanced by any examiner or clinician. The appellant was discharged from active duty after two months due to an asthma diagnosis. In July 1988, the appellant’s private physician, Dr. L.S., stated that further evaluation by a specialist would be necessary to determine the cause of her back pain, including to determine whether it was caused by spina bifida, osteoarthritis, or some other abnormality. Dr. L.S. reported that the appellant did not wish to have further evaluation. In October 1997, Dr. L.S. reported that the appellant had congenital spina bifida, status-post skin graft as a young infant, but that she had not seen him in the past for that disorder. She had seen him for low back pain secondary to a December 1988 motor vehicle accident, when she told him that she had back pain even as a young child and teenager secondary to spina bifida. A December 1998 VA treatment record states that the appellant reported she had spina bifida secondary to her father’s exposure to Agent Orange. The record reflects a diagnosis of spina bifida. During an August 1999 VA examination, the appellant reported low back pain for most of her life. She also had cold hands, buttocks, and feet. She reported that she was diagnosed with fibromyalgia and wondered if it was complicating her issues. The examiner diagnosed “History of spina bifida secondary to Agent Orange exposure of her father” and disc herniation with debilitating back pain. In February 2000, Dr. C.L. diagnosed spina bifida with possible chronic pain syndrome and reported that the appellant seemed to withhold information regarding her medical history. Thereafter, in May 2000, Dr. C.L. diagnosed chronic back pain and advised the appellant that she could not link her symptoms to spina bifida without a clear diagnosis of what she previously had. She opined that the appellant had either fibromyalgia or myofascial pain syndrome. She noted that the appellant appeared to be telling different medical providers different versions of her medical history. Finally, in July 2000, Dr. C.L. opined that the appellant’s record did not verify a prior diagnosis of spina bifida and the records did not substantiate such a diagnosis given the fact that no follow-up was needed and the appellant had normal examinations. In an August 2000 statement, the appellant reported that her mother was told when she was born that she had a hole in her back causing her to lose fluid and that it was a “milder form of [spina] bifida.” She reported that she had urinary tract surgery at age two and that she had back complaints throughout her life. In September 2000, the appellant provided medical internet articles relating to pilonidal dimples and spina bifida occulta. VA treatment records from November 2000 reflect that the appellant’s father told VA that he was told the appellant had spina bifida when she was born. In November 2000, Dr. L.S. stated that he is not an expert “in this area” but that spina bifida is the term for the actual spine and lack of fusion and a pilonidal cyst or tract is a tract from the skin down into the spinal canal area. He did not otherwise opine on the appellant’s disorder. In an October 2001 statement, the appellant’s mother and father stated that they were told at the time of the appellant’s birth that she was born with a pilonidal sinus and that was a “less severe form of [spina] bifida.” They reported that she had urinary tract surgery as a child and that she fell down the stairs but did not cry. They stated that they were told she experienced more pain because of her spine disorder and, therefore, the fall did not make her feel pain. In September 2006, Dr. C.D. conducted an extensive review of the appellant’s medical history and opined that the records suggested that “while she may indeed have had surgical repair of spina bifida, it is perhaps more likely that she had a pilonidal sinus repair.” He also mentioned that the appellant correctly indicated that a pilonidal sinus can be associated with spina bifida, but that the two are different disorders. He did not otherwise indicate whether she had spina bifida. In December 2007, Dr. F.M. conducted an extensive review of the appellant’s medical history and opined that there is a “[c]lear history of pilonidal cyst,” and probable incomplete sacral paraparesis, possibly progressive due to a spinal dysraphism or sacral canal dermoid or other type of tumor commonly associated with spinal dysraphism syndromes. Mild weakness in the sacral dermatomes and chronic pain accounted for her mild bladder incontinence. However, in January 2008, Dr. F.M. stated that, after review of a negative MRI for spinal dysraphism, he is “at a loss to explain her symptoms.” Thereafter, he stated he would write a letter to the VA “documenting her current exam and its possible relationship to her childhood pilonidal sinus tract[.]” (emphasis added). In February 2008, Dr. M.P., at the Mayo Clinic, stated that he asked Dr. F.M. to address whether the appellant had spina bifida; he did not provide his own diagnosis. In an undated note received by VA in March 2009, T.R. reported that Dr. M.P. replied to the appellant’s “general question” that “a pilonidal sinus indicates the presence of an opening around the tailbone that may track into the spinal canal, which can be associated with spina bifida. Most likely the patient would have bowel and bladder symptoms as the primary problem with this form of spina bifida.” In June 2009, Dr. I.A. discussed the appellant’s recent consultation with Dr. M.P. Dr. I.A. reported that Dr. M.P. stated “that [the] patient has a pilonidal sinus [which] indicated the presence of an opening around the tailbone that may track into the spinal cord which can be associated with spina bifida. Most likely the patient would have bowel and bladder symptoms as the primary problem with this form of spina bifida.” In July 2009, Dr. M.P. opined that the appellant had symptoms consistent with a neurogenic bladder and bowel, but because “there is no bon[]y defect, she does not have, by definition, Spina Bifida.” He added that although there is significant literature available discussing the misdiagnosis of spinal cord dysraphism as a pilonidal sinus, there is no evidence of a spinal dysraphism in the appellant. In August 2009 private treatment records, the appellant reported a history of pilonidal sinus associated with bowel and bladder involvement and stated that she was recently diagnosed with spina bifida at the Mayo Clinic. On her April 2010 VA Form 9, the appellant stated that her birth records indicated that she was born with a pilonidal sinus. She stated that she believed a pilonidal sinus was the same as spina bifida. In February 2011, the appellant was afforded a Board hearing. She stated that she was born with a pilonidal sinus which she believed was a form of spina bifida. She reported bowel, bladder, gynecological, and pain symptoms throughout her life, as well as difficulty walking and standing, and an inability to work. In October 2012, a VA neurologist reviewed the appellant’s file, including the opinions by Dr. C.D., Dr. M.P., Dr. F.M., Dr. L.S., and Dr. I.A. The neurologist opined that the appellant did not now and never did have spina bifida or spina bifida occulta. He explained that multiple MRI studies of her lumbosacral spine never demonstrated any abnormalities of the vertebral architecture that would be consistent with spina bifida occulta, meningocele, or meningomyelocele. He stated that the appellant had a pilonidal cyst, which was diagnosed clinically. He detailed the appellant’s lay statements of difficulty with urination and fecal continence, and her significant back pain. He opined that more likely than not the appellant’s alternating issues and problems with constipation and diarrhea could be attributed to irritable bowel syndrome, and chronic pain and depression “are seen with the spectrum of fibromyalgia,” none of which are due to spina bifida. He indicated that her urinary tract symptoms may be a result of interstitial cystitis which can also occur “as part of the spectrum of fibromyalgia syndrome,” but stated that he could not define the exact cause of her long-standing urologic problems because they were multifaceted with a mechanical component and neurogenic component. He could conclusively state that her urinary tract symptoms were not due to spina bifida or her pilonidal sinus. He noted that the appellant’s cognitive parameters appeared to be well preserved. In a November 2013 statement, the appellant reported that she received cortisone injections in her spine but continued to have pain. She also reported that she lacked control of her bladder and bowels. In a June 2014 statement, the appellant reported that she was born with an underdeveloped urinary tract system and reproductive organs. She reiterated that she had surgery on her urinary tract and stated that she never had a normal menstrual cycle. In May 2017, the appellant was afforded a Board hearing. The appellant and her mother stated that her diagnosis at birth was not spina bifida, but a pilonidal sinus. Her mother testified that she was told at that time that the pilonidal sinus was a type of spina bifida. Her mother also testified that the appellant had urinary tract surgery when she was 4 years old, had an underdeveloped reproductive system, that she was told the appellant would not be able to have children, and that the appellant had bowel and bladder symptoms throughout her life. The appellant’s mother also testified that when the appellant was a baby, she fell down the stairs but did not cry and that the doctors told her it was because the appellant was in so much pain daily that falling down the stairs did not cause her additional pain. The appellant testified that she believed a pilonidal sinus was the same disorder as spina bifida. In a March 2019 statement, the appellant’s mother reported that she was told at the time of the appellant’s birth that she was born with a form of spina bifida. She reported that, as an infant, the appellant leaked sinus fluid from a hole near her spine and that the hole required bandaging for an extended period of time. She reiterated that the appellant fell down the stairs as a baby and did not cry, had urinary tract complications which required surgery, and that she had an underdeveloped reproductive system. She reported that the appellant always had low back pain, inconsistent menstrual periods, and bowel and bladder complications. In March 2019, the appellant submitted website documents about orthopedic complications in individuals with myelomeningocele, a form of spina bifida, and about interstitial cystitis/bladder pain syndrome. The document about myelomeningocele indicates that individuals with the disorder have bowel, bladder, motor, and sensory paralysis below the site of the spinal lesion and can have other lesions of the spinal cord or structural abnormalities of the brain which affect neurologic functioning. The document about interstitial cystitis/bladder pain syndrome discussed symptoms of, causes of, and treatment for that disorder. In a March 2019 statement, the appellant’s representative reiterated that the appellant was born with a pilonidal sinus “which is associated with spina bifida.” The appellant indicated that she believed the October 2012 VA medical opinion was inadequate because it did not adequately explain how the appellant’s urinary incontinence could be attributed to something other than spina bifida. The appellant also argued that the July 2009 opinion from Dr. M.P. was inadequate because it “failed to acknowledge that [the appellant’s] surgery closing her spine at birth would have cured” a “bon[]y defect” in the spine. VA and private treatment records indicate that the appellant had several magnetic resonance imaging (MRI) studies of her lumbar spine, including in December 1998, May 2002, December 2007, May 2009, and February 2010. Spina bifida was not indicated in any of the MRI study reports. Analysis A preponderance of the evidence is against a finding that the appellant has spina bifida, other than spina bifida occulta. Records beginning with the appellant’s birth indicate that she was born with a pilonidal sinus. Although several physicians have indicated that a pilonidal sinus often accompanies spina bifida, they have not stated that the appellant has spina bifida, other than spina bifida occulta. As such, she does not meet the criteria for benefits under 38 U.S.C. § 1805. The Board does not doubt that the appellant’s parents were told that pilonidal sinus was a form of spina bifida at the time of the appellant’s birth. However, the evidence does not support that the appellant’s pilonidal sinus was actually spina bifida as defined by VA regulations and as required for VA benefits under 38 U.S.C. § 1805 for a child born with spina bifida. The majority of the appellant’s private physicians, including Dr. F.M., Dr. C.D., and Dr. M.P., did not diagnose the appellant with spina bifida. Dr. F.M. and Dr. M.P. acknowledged that pilonidal sinus can be misdiagnosed at birth or can be associated with spina bifida, but neither relates the appellant’s pilonidal sinus to spina bifida. The appellant, her mother, and her father have all acknowledged that the appellant was born with a pilonidal sinus, which they have stated they believed was a form of spina bifida or was associated with spina bifida. The Board acknowledges that December 1998 VA treatment records, Dr. L.S., and Dr. I.A. appear to diagnose the appellant with spina bifida. Those opinions do not outweigh the other medical opinions in the record stating that she does not have spina bifida. Dr. L.S.’s diagnosis and the diagnosis in the December 1998 VA treatment records appear to be based on the appellant’s self-reported history and are a reiteration of what the appellant told the clinician, rather than a diagnosis separately advanced by the clinicians. Additionally, Dr. L.S. stated in November 2000 that the term spina bifida indicates a lack of fusion of the actual spine, while pilonidal sinus or tract indicates a track through the skin into the spinal canal area. He seemed to acknowledge with this statement that the two disorders are distinct and, therefore, not interchangeable terms for the same disorder, as the appellant and her mother have stated. Dr. I.A.’s opinion is dependent on and appears to be almost an exact dictation of Dr. M.P.’s March 2009 response to a “general question,” wherein he did not diagnose the appellant with spina bifida. If taken as evidence of a diagnosis, the March 2009 note is given less probative weight because it is contradicted by Dr. M.P.’s July 2009 opinion that the appellant does not have spina bifida. The medical articles submitted by the appellant are not given probative weight because they are too general and were not used by or cited to by any physician to diagnose spina bifida. The website pages submitted in March 2019 do not support a finding that the appellant has spina bifida. Instead, the first document provides information about symptoms of myelomeningocele, which is a form of spina bifida. Although the appellant has some of the symptoms of myelomeningocele, this does not mean that she has spina bifida. Symptoms of back pain, urinary and bowel incontinence, and pain can be associated with many disorders. As the appellant has not been diagnosed with myelomeningocele, this document is not relevant. The second document provides information about interstitial cystitis/bladder pain syndrome. In a March 2019 statement, the appellant’s representative argued that her symptoms did not match those indicated in this webpage document and, therefore, the October 2012 VA medical opinion was inadequate for asserting that urinary tract complaints could be caused by interstitial cystitis. Just because the appellant does not have most or all of the symptoms associated with interstitial cystitis does not mean that it is not the cause of her symptoms. Additionally, the October 2012 VA examiner expressly stated that he was unable to “define the exact etiology” of her symptoms because the cause is multifaceted (both mechanical and neurological). He indicated that interstitial cystitis could be the cause of her symptoms. The Board has considered the appellant’s testimony that pilonidal sinus is a form of spina bifida. The diagnosis of spina bifida is, however, a complex medical question that requires medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board cannot give probative weight to that statement. Additionally, the appellant’s and her mother’s reports of her symptoms of life-long pain and incontinence are competent and credible, but such lay reports cannot be used to support a diagnosis of spina bifida, because such diagnosis is a complex medical question. Id. Many disorders can cause such symptoms. Therefore, these statements cannot be assigned significant probative weight as to the complex medical question of whether the appellant has spina bifida other than spina bifida occulta. Additionally, the appellant’s mother reported that, at the time of the appellant’s birth, the doctors told her that the appellant’s pilonidal sinus was a form of spina bifida. The Board finds the appellant’s mother is both credible and competent (qualified) to report these statements. However, treatment records from that time do not state that the appellant was born with spina bifida or that her pilonidal sinus was a form of spina bifida. These records, combined with many subsequent medical opinions, contradict and outweigh the statements of the doctors who told the appellant’s parents that her pilonidal sinus was a form of spina bifida. The appellant has stated that the October 2012 VA medical opinion is inadequate because the clinician did not explain how the appellant’s urinary incontinence could be attributed to any disorder other than spina bifida and because the website documents indicate that urinary incontinence is not typically associated with interstitial cystitis. Although this may be true, the October 2012 VA medical opinion acknowledged that the appellant’s urinary tract symptoms were complex and multifaceted and stated that he was not able to determine the exact cause of her different symptoms. He indicated that interstitial cystitis could be the cause of her symptoms because it is often associated with fibromyalgia. He could authoritatively rule-out, however, that her urinary tract symptoms were caused by spina bifida or her pilonidal sinus. Additionally, many disorders can cause urinary incontinence and, therefore, the fact that the appellant has that symptom does not guarantee that she has spina bifida. As such, the October 2012 VA medical opinion is not inadequate because the examiner opined that her urinary incontinence was not caused by spina bifida. The appellant has also asserted that medical opinions indicating that she had no bone defects in her spine are inadequate because they failed to indicate how she could be expected to have bone defects when she had spina bifida repair surgery at birth. X-ray studies, MRIs, and examinations of the appellant’s spine consistently have not indicated any evidence of a history of spina bifida or of spinal surgery. Furthermore, treatment records from the appellant’s birth and from her childhood urinary tract surgery do not indicate that she had spina bifida or had had spina bifida surgery at any point. The appellant expressly questions the July 2009 opinion of Dr. M.P. and the October 2012 VA medical opinion in this regard. These opinions were based on comprehensive reviews of the record and the appellant’s medical history. They were not based solely on the lack of an ongoing bone defect. Additionally, the appellant also raised, again, how these physicians could opine that she did not have spina bifida because she had urinary incontinence. As stated previously, many disorders can cause urinary incontinence and urinary tract symptoms. The fact that the appellant has such symptoms does not necessitate her having spina bifida. Based on the foregoing, a preponderance of the evidence is against a finding that the appellant has or ever had spina bifida, other than spina bifida occulta. Additionally, the appellant has not asserted that she is the child of a biological mother who is a Vietnam Veteran and, therefore, does not qualify for benefits for birth defects other than spina bifida. See 38 U.S.C. §§ 1811, 1812, 1815; 38 C.F.R. § 3.815. In cases where the appellant’s father is a Vietnam Veteran, benefits may be granted only for spina bifida, other than spina bifida occulta. The law does not provide flexibility in this case. [CONTINUED ON NEXT PAGE] Because the appellant does not have spina bifida and her mother is not a Vietnam Veteran, there is no legal basis upon which to grant benefits. The law is dispositive of the issue on appeal, and the claim must be denied because of the absence of legal merit or entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.