Citation Nr: 21002844 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 16-28 730 DATE: January 15, 2021 ORDER Entitlement to a monetary allowance under 38 U.S.C. § 1805 for a child of a Vietnam Veteran born with spina bifida is granted. FINDINGS OF FACT 1. The appellant is the biological child of the Veteran and was conceived subsequent to the Veteran’s service in Vietnam during the Vietnam War era; the Veteran’s exposure to herbicides is conceded. 2. The appellant was born with a form or manifestation of spina bifida. CONCLUSION OF LAW The criteria for payment of a monetary allowance under 38 U.S.C. § 1805 for a child of a Vietnam veteran born with spina bifida have been met. 38 U.S.C. §§ 1802, 1805, 5107(b); 38 C.F.R. §§ 3.102, 3.814. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1969 to June 1971. The Veteran died in January 2011. The appellant is the Veteran’s biological child. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, a hearing was held before the undersigned. A transcript of the hearing is of record. The appellant seeks a monetary allowance under 38 U.S.C. § 1805 for a child of a Vietnam Veteran born with spina bifida. VA compensation benefits are only payable to a child of a veteran under limited circumstances based on exposure during active duty to herbicide agents in Vietnam, Korea or Thailand. VA will provide certain benefits, including monthly monetary allowance, for an individual who suffers from a form or manifestation of spina bifida and whose biological father or mother is a Vietnam veteran or had covered service in Korea or Thailand. See 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814; see also 72 Fed. Reg. 32,395 (June 12, 2007) and 79 Fed. Reg. 20,308 (April 14, 2014) (both providing that benefits for birth defects other than spina bifida may not be presumed based on Vietnam-era herbicide agent exposure of parents). 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. 38 C.F.R. § 3.814(c)(1). The Veteran’s DD Form 214 reflects that he served in Vietnam from November 1969 to October 1970 and was awarded the Combat Infantryman Badge. Therefore, he is presumed to have had exposure to herbicide agents. See 38 U.S.C. § 1805; 38 C.F.R. § 3.814. The appellant’s birth certificate reflects that he is the Veteran’s biological son, born after the Veteran’s service in Vietnam, in October 1971. The term “spina bifida,” in the context of this law, is defined as “all forms and manifestations of spina bifida except spina bifida occulta.” 38 U.S.C. § 1802. See Jones v. Principi, 16 Vet. App. 219 (2002) (holding that the plain language of 38 U.S.C. § 1802 does not limit the definition to spina bifida per se but includes other “forms and manifestations” of spina bifida except for spina bifida occulta). Private treatment records from October 1971 indicate that the appellant was born with a congenital occipital supratentorial meningoencephalocele and microcephaly. A skin closure over the occipital encephalocele operation was performed. An October 1971 pathologist consultation noted that the appellant had a congenital cervical encephalocele. A VA opinion was obtained in September 2015. The VA examiner opined that the appellant had an encephalocele which was supratentorial at birth which required surgical correction and ultimately developed hydrocephalus which required shunting. The examiner stated that: This encephalocele would be considered of spinal tube defect and as such akin to a manifestation of spina bifida. The lesion is however supratentorial and did not affect the spinal column or spinal cord. Therefore there was no defect of the posterior elements o the spine and as such it does not fit within the strict definition of spina bifida. It is definitely a neural tube defect but occurred superior to the spina column in the supratentorial region. Therefore under [my] understanding of the interpretation of the VA regulation around spina bifida this individual would not be covered under the regulation. As a rationale, the examiner stated that there are many forms of neural tube defect some of which can occur in the region of the brain and some of which occur throughout the various zones of the spinal column. These include cervical, thoracic and lumbar defects which are classified collectively as spina bifida. Other neural tube defects occur supratentorially and do not involve the spine as has occurred in this individual. The examiner stated that the appellant had a cerebral neural tube defect. As the examiner provided a thorough rationale for the opinion, the Board finds the opinion to have probative value. In a November 2017 private opinion, Dr. H.B., a child neurologist opined that the appellant’s neural tube defect should be considered a form or manifestation of spina bifida. Dr. H.B. stated that he had reviewed the appellant’s medical records and the September 2015 VA opinion, and he disagreed with the opinion. Dr. H.B. opined that: In fact [the appellant’s] neural tube defect should be considered a form or manifestation of spina bifida. [The appellant’s] neural tube defect had the same neurological consequences as a spinal lesion with him having a Chiari malformation and hydrocephalus. [The appellant] suffered from a failure of the embryonic neural tube to close. The terms open neural tube defects, dysraphic states and spina bifida are interchangeable terms used to describe a failure of closure of the embryonic neural tube. Dr. H.B. further noted that the law recognizes that Veterans who were exposed to toxins could have children born with neural tube defects. It excludes non-clinically significant lesions such as spina bifida occulta, which is not at issue here. Dr. H.B. stated that the supratentorial encephalocele suffered by the appellant is a form or manifestation of spina bifida. He stated that he based the opinion on more than 30 years of evaluating and treating children with congenital lesions of the nervous system. He also cited medical textbooks that he consulted. At the September 2020 Board hearing, Dr. H.B. testified that the appellant’s condition is a form or manifestation of spina bifida. He testified that the appellant had the usual complications of spina bifida, having had hydrocephalus and chiari malformation, and “although not technically spina bifida but the spirt of it is the same thing. That is that it’s a failure of closure of neural tube.” Dr. H.B. opined that the appellant’s occipital encephalocele, hydrocephalus, syringomyelia, and Chiari malformation were forms or manifestations of spina bifida. He stated that he based the conclusion on the Volpe textbook of neonatal neurology and his own clinical experience of 40 years. The Board finds Dr. H.B.’s November 2017 opinion and September 2020 testimony to be highly probative as he provided a thorough rationale for his conclusions and reviewed the evidence of record. The Board finds that the weight of the evidence is at least in equipoise as to whether the appellant’s disability can be considered a form and manifestation of spina bifida. The U.S. Court of Appeals for Veterans Claims (Court) addressed the issue of whether a claimant who manifested occipital encephalocele was entitled to benefits under 38 U.S.C. § 1805. The Court held that the plain language of 38 U.S.C. § 1802 did not limit the definition to spina bifida per se but included other “forms and manifestations” of spina bifida except for spina bifida occulta. Jones v. Principi, 16 Vet. App. 219 (2002). As in Jones, the appellant in this case was diagnosed with occipital encephalocele at birth. Although the September 2015 VA examiner opined that the appellant’s disability was not a form or manifestation of spina bifida, Dr. H.B. opined that the disability was a form or manifestation of spina bifida. Both the VA examiner and Dr. H.B. provided thorough rationales for their opinions and the opinions have probative value. Resolving the benefit of the doubt in the appellant’s favor, the Board finds that the evidence is at least in equipoise as to whether the appellant’s disabilities are a form or manifestation of spina bifida. As the evidence shows the Veteran served in the Republic of Vietnam during the Vietnam era, the appellant is his biological child born after his service, and the appellant has been diagnosed with a form or manifestation of spina bifida, entitlement to a monetary allowance under 38 U.S.C. §1805 for a child of a Vietnam Veteran born with spina bifida is granted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Marenna, 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.