Citation Nr: A21019293
Decision Date: 12/03/21	Archive Date: 12/03/21

DOCKET NO. 210922-188190
DATE: December 3, 2021

ORDER

The severance of benefits under 38 C.F.R. § 3.814 and 38 U.S.C. § 1805 for a child born with spina bifida effective October 1, 2017 was improper; therefore, the appeal is granted.

FINDING OF FACT

The evidence does not show that the agency of original jurisdiction (AOJ) was clearly and unmistakably erroneous in its April 2005 decision granting benefits under 38 C.F.R. § 3.814 for a child born with spina bifida.

CONCLUSION OF LAW

The severance of the benefits under 38 C.F.R. § 3.814 for a child born with spina bifida was improper. 38 U.S.C. § 5107; 38 C.F.R. § 3.105.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board is required by law to review appeals in docket order unless "other sufficient causes" have been shown to advance a case on the docket. 38 U.S.C. § 7107.

Here, given the special processing of spina bifida related appeals, the Board has considered the benefit to the appellant, the impact on other claimants that would result from advancing his case, and the impact on other claimants that would result if the case is not advanced, and has decided that advancement on the docket for the sole purpose of rendering this decision is fair and appropriate at this time.

Specifically, expediting these appeals will "produce fair, efficient, timely, [and] effective review of appeals," and promote "fairness in adjudications among and between veterans" given the special docketing considerations related to spina bifida related appeals. See Ramsey v. Nicholson, 20 Vet. App. 16, 34 (2006); see also 38 U.S.C. § 7107(a)(2)(C), 38 C.F.R. § 20.900(c)(1).

The appellant is the son of a Vietnam veteran. The appellant is also a veteran himself, who served on active duty from October 1999 to November 1999.

A rating decision was issued under the legacy system in September 2017 and the appellant submitted a timely notice of disagreement (NOD) in January 2018.  In December 2019, the AOJ issued a statement of the case (SOC). The appellant filed a substantive appeal (VA Form 9) in February 2020 and the AOJ certified the claim to the Board of Veterans' Appeals (Board) in March 2020.

The appellant testified before the undersigned Veterans Law Judge (VLJ) during a May 2021 hearing. A transcript of this hearing is of record. 

In September 2021, the Board remanded the appeal for further development to confirm a spina bifida diagnosis, to include affording the appellant with a VA examination and obtaining an outstanding December 15, 2017 private medical imaging report. However, the appellant refused to participate in the development, twice. See VA 21-4138 Statement In Support of Claim (1 & 2) (September 2021). 

In September 2021, the AOJ issued a supplemental statement of the case (SSOC).  The appellant opted-in to the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting an October 2021 VA Form 10182, Decision Review Request: Board Appeal, identifying the September 2021SSOC.  Therefore, the September 2021 SSOC is the decision on appeal.  

In the October 2021 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2021 SSOC.  38 C.F.R. § 20.301.

The current severance stems from a claim for a higher level of allowance of benefits for a child born with spina bifida. The AOJ has yet to adjudicate or develop that claim in the first instance. As such, the Board does not have jurisdiction over the issue of a higher level of monetary allowance under 38 C.F.R. § 3.815 for a child born with spina bifida at this time.

The appellant should note that in the absence of adequate medical information, VA will schedule an examination for the purpose of assessing the level of disability. 38 C.F.R. § 3.815(d)(3). A claimant, not VA, has the responsibility to present and support a claim for disability benefits. 38 U.S.C. § 5107; Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist is a two-way street). Failure to report for the VA examination could result in a denial of that claim.

Nonetheless, the following discussion is limited to the issue of severance of benefits under 38 C.F.R. § 3.814 and 38 U.S.C. § 1805 for a child born with spina bifida, Level I, from October 1, 2017.

The severance of benefits under 38 C.F.R. § 3.814 for a child born with spina bifida effective October 1, 2017, was improper; the appeal is granted.

The appellant asserts that VA improperly severed benefits under 38 C.F.R. § 3.814 for a child born with spina bifida, effective October 1, 2017. 

There are certain procedural safeguards where benefits are to be severed; and if they are not followed, the severance is generally void ab initio. Specifically, a rating that proposes severance must be prepared, setting forth all material facts and reasons. The appellant must be notified at his or her latest address of record of the contemplated action and the detailed reasons therefore and must be given 60 days to present additional evidence to show that benefits should be maintained. 38 C.F.R. § 3.105(d). The appellant may also request a hearing within 30 days of receiving notice. 38 C.F.R. § 3.105(i).

Substantively, severance of benefits will only occur where the evidence establishes that the award was clearly and unmistakably erroneous, with the burden of proof being upon the Government. A change of diagnosis "may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which the grant was predicated is clearly erroneous." 38 C.F.R. § 3.105(d) (discussing severance of service connection; applicable by analogy in this case of severance of entitlement to benefits). 

The United States Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether clear and unmistakable error (CUE) is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310 (1992).

Severance based on any standard less than that set forth in 38 C.F.R. § 3.105(d) is erroneous as a matter of law. Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006); Graves v. Brown, 6 Vet. App. 166, 170 (1994); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) (discussing severance of service connection, entitlement to benefits).

A CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 3.105(d); see also Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313.

In determining whether entitlement will be severed, VA must consider evidence that was generated after the original decision was made. Stallworth, 20 Vet. App. 482 (holding that a "severance decision focuses -not on whether the original decision was clearly erroneous- but on whether the current 'evidence establishes that [entitlement to benefits] is clearly erroneous.'" (quoting 38 C.F.R. § 3.105(d)); see Daniels v. Gober, 10 Vet. App. 474, 480 (1997) (holding that 38 C.F.R. § 3.105(d) "clearly contemplat[es] the consideration of evidence acquired after the original granting of [entitlement to benefits]").

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).

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).

The appellant does not contest, nor does the evidence indicate, that the AOJ failed to apply the procedural safeguards.

Rather, the question for the Board is substantive: whether the AOJ met its burden of proof to sever the appellant's spina bifida benefits. 

The Board concludes that the AOJ failed to meet its burden. While there is conflicting medical evidence as to whether the appellant has spina bifida for VA purposes, the record does not demonstrate that the diagnosis on which the initial grant of spina bifida benefits was predicated is clearly erroneous. Therefore, restoration of spina bifida benefits effective October 1, 2017 is warranted.

In this case, the evidence of record at the time of the April 2005 rating decision includes service treatment records (STRs) and a birth certificate. An x-ray from Moses Cone Health System, dated December 10, 1996, reflects "moderate spina bifida [was] noted in the lumbar area at multiple levels." In addition, a November 1999 entry level medical separation report from USS Tranquility Medical Clinic, Naval Hospital, Great Lakes, Illinois, dated October 24, 1999, shows a diagnosis of spina bifida without hydrocephalus. The report noted the condition was not correctable to meet Navy standards and that the spina bifida existed prior to service. The report also noted films of the lumbosacral spine in the AP, lateral and both oblique projections, show spina bifida of T12, L1, L2, L3, L4 and L5.

In the April 2005 rating decision, the AOJ determined the appellant's father served in Vietnam, the appellant was born after his father's service, and the STRs demonstrated the appellant had a diagnosis of spina bifida. Therefore, the AOJ found that the criteria for a monetary award for a child born with spina bifida had been met and granted the claim for entitlement to benefits under 38 U.S.C. § 1805 at Level I, effective December 16, 2003.

Thereafter, the appellant filed two claims for a higher allowance. The first claim was filed in October 2006, which was denied in a January 2007 rating decision. 

The appellant then filed second claim was filed in March 2017. In furtherance of the March 2017 claim for a higher allowance, the appellant filed a VA 21-4142 Authorization for Release of Information, granting the VA permission to request private treatment records (PTRs) from Spine & Scoliosis Specialists located in Greensboro, NC.

In April 2017, VA obtained the aforementioned PTRs on the appellant's behalf. The records included a June 2012 x-ray of the appellant's lumbar spine that showed L5-S1 occult spina bifida, facet spondylosis, and L3-L4 DDD with minimal bulge and no nerve root compression. The physician noted the appellant had flare-ups about every 7 weeks and the episodes lasted 2-3 days. The appellant had to miss work until the episodes subsided and the episodes interfered with the appellant's concentration and ability to sit. The physician noted the appellant had a sedentary job at the time, which required him to sit most of the day. The examiner opined the flare-ups would require the appellant to miss work periodically, but there was no surgery that would help with his problem. August 2012 PTRs confirmed the medical imaging findings with a formal clinical diagnosis of L5-S1 occult spina bifida, facet spondylosis, and L3-4 degenerative disc disease.

In May 2017, VA obtained a medical opinion (VAMO) due to the conflicting medical evidence as to the appellant's diagnosis, spina bifida versus spina bifida occulta. The clinician opined the prior decision that determined the appellant had spina bifida was the result of a clear and unmistakable error and that it was as likely as not that the appropriate diagnosis for the appellant was spina bifida occulta. The rationale was that although some of the medical records do use the term spina bifida, it is the case that medical personnel often use spina bifida as a shorthand and are not always precise as to the distinctions between spina bifida (myelomeningocele or meningocele) and spina bifida occulta- the latter being limited to the incomplete closure of the posterior vertebral elements alone without neurologic involvement. In this case, based on all accumulated evidence, the examiner concluded that the appellant had spina bifida occulta. A VA examination was not afforded to the appellant in connection with the VAMO. 

In July 2017, VA proposed to sever spina bifida benefits on the basis that medical records showed the appellant has a diagnosis of spina bifida occulta, which is not a disability covered under the Chapter 18 program. He was given 60 days to present additional evidence to show that benefits should be maintained.

In August 2017, the appellant filed a NOD with the July 2017 proposed severance, asserting that he does have a diagnosis of spina bifida, and submitted an August 2017 private opinion from a clinician at Spine & Scoliosis Specialists, which stated there was no change in the diagnosis of spina bifida and that the diagnosis was incorrectly labeled as spina bifida occulta. The clinician also noted the facility was treating the appellant for his cervical spine disability and had not made any specific evaluation in respect to his spina bifida.

In September 2017, the AOJ issued a rating decision that implemented the severance of spina bifida benefits effective October 1, 2017, the first day of the month following the 60 days. 

In January 2018, the appellant submitted a written lay statement where he asserted that he underwent a CT scan in December 2017, which showed spina bifida was present from T11-S1. He also stated his provider included written documentation concerning the findings. A January 2018 statement from a clinician with Spine & Scoliosis Specialists was associated with the claims file that noted a CT scan dated December 15, 2017 documented spina bifida form T11-S1. The clinician also noted that it was an unusual finding and would be consistent with congenital birth defects associated with paternal exposure to herbicide agents.

The AOJ issued notification letters in January 2018 and May 2018 that reiterated the September 2017 decision to sever spina bifida benefits.

In April 2019, VA received a NOD as to the severance of benefits. The AOJ issued a SOC in December 2019. The appellant filed a VA Form 9 in response in February 2020 wherein he requested a live videoconference hearing. The appeal was certified to the Board for appellate consideration in March 2020.

During the May 2021 Board hearing, the appellant asserted he had spina bifida and that he submitted medical evidence to the AOJ twice that he had spina bifida, not spina bifida occulta. He testified the first time he heard of spina bifida was his fifth week in basic training in the Navy. His legs stopped working, and he was literally carried to the USS Tranquility, where he was examined by a physician. The physician was shocked that he had made it that far with the level of severity of his spine. He also asserted the May 2017 VA medical opinion was obtained without affording him a VA examination to confirm his diagnosis; it was based solely on a review of records.

In September 2021, the Board remanded the claim for further development to afford the appellant with a VA examination to confirm his spina bifida diagnosis and to obtain the outstanding December 15, 2017 medical imaging report from Spine & Scoliosis Specialists as it was not associated with the submitted statement. 

Subsequently, the appellant refused to participate in the development of the claim, twice. See VA 21-4138 Statement In Support of Claim (1 & 2) (September 2021). 

The AOJ attempted to obtain a clarifying opinion in September 2021. The clinician stated she could not determine if the appellant's diagnosis of spina bifida from T11 to S1, per the available medical records, was spina bifida occulta or another type, but there was a clear diagnosis of spina bifida from T11 to S1.

As a result, the AOJ submitted a request for an independent medical opinion (IMO); however, the Director of Compensation Service (Director) rejected the IMO request on the basis that another examination/IMO would serve no fruitful purpose as there are no additional records to review and the appellant would not attend an examination. The Director also noted the most thorough and well-reasoned medical evidence was that from the May 2017 examiner. See Email Correspondence (September 2021), Medical Opinion (September 2021), and VA Memo (September 2021). The AOJ issued a SSOC in September 2021 and the appellant appealed the decision in October 2021.

Based on the above, the Board finds that the competent evidence does not show the April 2005 rating decision granting spina bifida benefits was clearly and unmistakably erroneous. The May 2017 VAMO that the appellant has spina bifida occulta (a non-compensable form of spina bifida) was based on a generalization and speculation. The examiner, in the rationale, stated "medical personnel often use spina bifida as a shorthand and are not always precise as to the distinctions between spina bifida (myelomeningocele or meningocele) and spina bifida occulta" when reviewing the PTRs submitted in April 2017. However, a speculative medical opinion provides neither positive nor negative support for a claim.  Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009).  

Even more compelling evidence are the two clarifying opinions submitted by private clinicians of Spine & Scoliosis Specialists in August 2017 and January 2018 that clarified the appellant has spina bifida. While the August 2017 private opinion conceded the facility had not made any specific evaluation in respect to the appellant's spina bifida, the January 2018 opinion noted a CT scan dated December 15, 2017 documenting that the appellant has spina bifida from T11-S1. The January 2018 private clinician further explained that it was an unusual finding and would be consistent with congenital birth defects associated with paternal exposure to herbicide agents. As the private treatment provider corrected the diagnosis and confirmed the appellant has spina bifida, the May 2017 VA examiner based her conclusion on what appears to be an inaccurate factual premise. The May 2017 VAMO is of no weight. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value).   

Perplexingly, the appellant has refused to allow VA to obtain a copy of the December 2017 CT scan on his behalf or submit himself to a VA examination, which he specifically complained was not afforded to him. This evidence would easily confirm whether the appellant has a compensable form of spina bifida.

Nonetheless, VA's task in assessing whether the severance was proper requires a high burden of proof. It is not to assess the probative value and weight of evidence proffered, or to determine whether the preponderance of the evidence is against the claim on appeal. Rather, it is VA's task to determine whether the initial grant constitutes clear and unmistakable error, which is a very onerous standard. The May 2017 VAMO, based on an apparently inaccurate fact, in itself, cannot be the sole basis of the severance. The evidence does not rise to the level of proof necessary for a finding that there was clear and unmistakable error in the initial grant of spina bifida benefits. The two medical records showing a spina bifida occulta, 12 years post grant of entitlement, without further supporting evidence, do not render the facts in this case undebatable.

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Therefore, the severance of benefits for a child born with spina bifida effective October 1, 2017 was improper. Accordingly, the appeal is granted. See 38 C.F.R. § 3.105(d). 

 

Caroline B. Fleming

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Pendleton, N.

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.