Citation Nr: A21016786
Decision Date: 10/15/21	Archive Date: 10/15/21

DOCKET NO. 200729-106073
DATE: October 15, 2021

REMANDED

The issue of entitlement to benefits under 38 U.S.C. § 1805 for a child born with spina bifida is remanded.

REASONS FOR REMAND

The Veteran served in the U.S. Army from February 1966 to February 1968. He served in the Republic of Vietnam. The appellant is the Veteran's son.

A decision was issued under the legacy system in April 2015 and the appellant submitted a timely notice of disagreement. In June 2020, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC). The appellant opted the claim into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a June 2020 VA Form 10182, Decision Review Request:  Board Appeal, identifying the June 2020 SSOC. Therefore, June 2020 SSOC is the decision on appeal. On the June 2020 VA Form 10182, the appellant elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the June 2020 SSOC, as well as any evidence submitted by the appellant or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303.

In January 2021, the Board denied benefits under 38 U.S.C. § 1805. The appellant subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Court granted the Parties' Joint Motion for Remand (JMR); vacated the January 2021 Board decision; and remanded the appeal.

The issue of entitlement to benefits under 38 U.S.C. § 1805 for a child born with spina bifida is remanded.

The matters are REMANDED for the following action:

1. BACKGROUND FOR THE RO ADJUDICATOR:

In a February 2019 remand, the Board directed the RO to obtain a VA medical opinion as to whether the appellant has a form or manifestation of spina bifida, except spina bifida occulta. The examiner was directly to specifically state whether the appellant's diagnosed neural tube disorder is a form or manifestation of spina bifida. No such opinion was obtained, and the August 2021 JMR stated that the Board must obtain an addendum VA opinion that "substantially complies with and answers the specific questions posed by its February 2019 remand." Therefore, remand is necessary.

THE REMAND DIRECTIVES FOLLOW

2. Return the file to the VA examiner who conducted the February 2020 VA medical examination. If the examiner is not available, have the file reviewed by a similarly qualified examiner. If necessary to respond to the inquiries below, schedule the appellant for all necessary VA examinations. All indicated tests and studies should be accomplished and the findings reported in detail. 

All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided.

The examiner should address the following:

(a.) Whether it is at least as likely as not that the appellant has a form or manifestation of spina bifida, except spina bifida occulta.

(b.) Whether it is at least as likely as not that the appellant's diagnosed neural tube condition is a form or manifestation of spina bifida.

 

 

Vito A. Clementi

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. E. Miller, Counsel

The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.