Citation Nr: A21019897
Decision Date: 12/14/21	Archive Date: 12/14/21

DOCKET NO. 210426-198012
DATE: December 14, 2021

ORDER

Entitlement to benefits under 38 U.S.C. § 1805 and 38 C.F.R. § 3.814 for a child born with spina bifida is granted.

FINDINGS OF FACT

1. The claimant is the biological child of the Veteran and was conceived after the Veteran's service in Vietnam during the Vietnam War era; the Veteran's exposure to herbicides is conceded.

2. The claimant was born with a form or manifestation of spina bifida (other than spina bifida occulta).

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 claimant is the son of a Veteran who served on active duty from June 1966 to April 1969 to include service in Vietnam. 

In a September 2015 decision, the agency of original jurisdiction (AOJ) denied the claim of entitlement to benefits for a child born with spina bifida on the basis that the claimant did not have a diagnosis of spina bifida. The AOJ issued Statement of the Case (SOC) in September 2017 and the claimant filed a substantive appeal (VA Form 9) in response in November 2017. The AOJ issued supplemental statements of the case (SSOCs) in October 2018 and February 2020.

In March 2020, VA received a VA Form 20-0995 Supplemental Claim, requesting review of the February 2020 SSOC. In a September 2020 decision, the AOJ denied the supplemental claim of entitlement to benefits for a child born with spina bifida on the basis that the claimant did not have a form or manifestation of spina bifida. 

In October 2020, the claimant submitted a VA Form 20-0996 Decision Review Request: Higher-Level Review (HLR), requesting review of the September 2020 supplemental decision. In March 2021, the AOJ issued the HLR decision dated in January 2021, wherein the AOJ denied the claim of entitlement to benefits for a child born with spina bifida on the basis that the claimant did not have a form or manifestation of spina bifida.

In the April 2021 VA Form 10182, Decision Review Request: Board Appeal, the claimant elected the Evidence Submission docket and requested review of the March 2021 HLR decision. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the claimant or his representative with, or within 90 days from receipt of, the VA Form 10182.  38 C.F.R. § 20.303. 

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 claimant, 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). 

Entitlement to benefits under 38 U.S.C. § 1805 and 38 C.F.R. § 3.814 for a child born with spina bifida

The claimant seeks a monetary allowance under 38 U.S.C. § 1805 for a child of a Vietnam veteran born with spina bifida. Specifically, the claimant's representative contends VA examinations were not interpreted correctly, and benefit of the doubt was not given. See HLR-Informal conference (March 2021) and VA Form 10182 (April 2021).

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 for five weeks as a truck driver in 1966 and was awarded a bronze star, a Vietnam service medal, a Vietnam campaign medal and a Vietnam gallantry cross with palm. Therefore, he is presumed to have had exposure to herbicide agents. See 38 U.S.C. § 1805; 38 C.F.R. § 3.814. In the October 2018 SOC, the AOJ confirmed receipt of a copy of the claimant's birth certificate in May 2015 and June 2015, which established the aforementioned veteran is the claimant's father. A Social Security Administration (SSA) Disability Determination and Transmittal report shows the claimant's date of birth is December 8, 1970, which is after the Veteran's service in Vietnam service. Therefore, the evidence clearly establishes the claimant is the biological son of a Vietnam veteran born after service and the first criterion to establish VA compensation benefits for a child born with spina bifida has been established.

The only question that remains is whether the claimant suffers from a form or manifestation of spina bifida.

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).

Here, medical records, dated December 1970, show the claimant was born with an imperforate anus with probable recto-urethral fistula. X-rays of the sacrum appeared grossly normal. See SOC (September 2017).

March 2014 radiology report shows the claimant has a history of rectal incontinence with several anal surgeries and low back pain. The impression was of a tethered spinal cord with associated filum lipoma; the conus tip lied approximately at the L3 level; and findings as above were suggestive of mild caudal regression syndrome. Id.

In an October 2015, a private clinician, Dr. N.J., opined the claimant was born with spina bifida other than spina bifida occulta. He reviewed the claimant's medical documentation and noted that if there was verification that the claimant is a biological child of a veteran who served in the Republic of Vietnam, his medical condition clearly qualifies him for these benefits. See Medical Treatment Record- Government Facility (July 2017).

In a March 2018, a private clinician, Dr. Dr. Z. B. opined the claimant has caudal regression syndrome and spina bifida. He noted the diagnosis of spina bifida was based on the presence of a partially cleft S1 vertebral body seen on MRI of the lumbar spine. See Medical Treatment Record- Government Facility (April 2018).

In an October 2018 VA medical opinion (VAMO), a board-certified neurologist, opined it was less likely as not that the claimant had a form or manifestation of spina bifida but rather a similar defect of caudal regression syndrome. The rationale was that the claimant has a complex case of caudal regression syndrome. The examiner explained the claimant has many deformities in the sacral and lower lumbar region to include agenesis of part of the sacrum and a tethered cord as well as the early recognized imperforate anus. He noted there were some defects in the spinal column, to include the laminas but at no point was there description of tissue herniating through a spinal defect. He further explained that [herniation through a spinal defect] is the feature that defines spina bifida. The examiner noted that a Dr. K accurately described the claimant's condition as "along the spectrum of spina bifida" but noted the claimant's diagnosis was caudal regression syndrome. He further stated that Dr. N.J.'s [opinion] clearly knows 38 U.S.C. § 1805 but opined Dr. N.J. did not support his determination that the claimant has spina bifida by any description of the anatomy that drew him to that conclusion. It was the VA examiner's understanding that 38 U.S.C. § 1805 did not consider all defects in the spine but only spina bifida. 

Unfortunately, the October 2018 VAMO did not take into consideration the March 2018 private medical opinion from Dr. Z.B.

As such, the AOJ obtained a clarifying VAMO in January 2020. The VA examiner noted he conducted a full review of the claimant's record including the private March 2018 private medical opinion. He opined the claimant did not have a form of spina bifida. The rationale was that there was no prior evidence of herniation of the spinal tissue thru the S1 partial vertebral defect, which is required evidence to meet the medical diagnosis of spina bifida. The examiner noted CT evidence submitted and dated March 2014 by Dr. C. S. did not document a diagnosis of spina bifida; only that the sacrum was hypoplastic and absent below S4 level with no coccygeal segments. He further noted that the S1 vertebral body appeared partially cleft suggestive of tethered spinal cord and mild caudal regression syndrome. 

In April 2020, VA received a second private medical opinion from Dr. Z.B. of Crystal Run Health Care wherein he opined the claimant had a combination of caudal regression syndrome and spina bifida. He once again noted the diagnosis of spina bifida was based on the presence of a partially cleft S1 vertebral body seen on MRI of the lumbar spine. Dr. Z.B. cited the claimant's MRI of the lumbar spine, which showed abnormalities confirming the diagnosis. Specifically, the March 2014 MRI showed: (1) evidence of tethered spina cord with associated filum lipoma; (2) mild caudal regression syndrome, including hypoplastic sacral vertebral bodies and absence of the sacral segments below the S4 level without coccygeal segments; (3) closed posterior arch dysraphism at the S2 and S3 levels; (4) partially cleft S1 vertebral body; (5) posteriorly and laterally positioned cauda equina nerve roots within the thecal sac, which might have been indicative of prior arachnoiditis; (6) conjoint proximal right L4 and L5 nerve roots, which split just proximal to a hypoplastic right L5 pedicle; (7) mild multilevel degenerative disc disease as described above with no evidence of significant spina canal or neural foraminal stenosis at any level; and (8) duplicated inferior vena cava. Dr. Z.B. further explained spinal dysraphism represents a spectrum of congenital anomalies resulting from incomplete or aberrant neural tube fusion. If the lesion is confined to the bony posterior arches at one or more levels, it is termed spina bifida.

In June 2020, the claimant submitted two treatises in support of his claim. The first treatise was entitled "Spinal Dysraphism" from the Spine Hospital at The Neurological Institute of New York, which, in pertinent part, defined spina bifida as the incomplete fusion of the spine. It also discussed the six types of spinal dysraphism. The second article was entitled "What is Spina Bifida," authored by the Spina Bifida Association. The article discussed variations of spina bifida, which included "occult spinal dysraphism, lipomyelomeningocele, fatty filum terminale, split cord malformation, terminal myelocystocele."

In September 2020, the AOJ obtained an additional clarifying VAMO. The examiner explained the nature of spina bifida, the main types, and how a diagnosis is established through radiographs and other imaging. He also explained the difference between spina bifida and spina bifida occulta.

The examiner opined the evidence was sufficient to support a diagnosis of spina bifida, other than spina bifida occulta.  The examiner stated the issue was really one of semantics. Strictly speaking, the claimant had spina bifida occulta because imaging showed an incomplete fusion in the lower sacral posterior elements but there was no visible abnormality on the back. (There is no myelomeningocele or meningocele.) But by accepted usage, the claimant can be diagnosed as spina bifida, given his neurological and other abnormalities (sacral agenesis, aberrant L4-L5 nerve roots). A more appropriate diagnosis would be spinal dysraphism, which includes a spectrum of congenital abnormalities to include spina bifida, split cord syndrome, and tethered cord syndrome. Also, neural tube defect (NTD) fit well as a diagnosis since it is a broad category and also includes sacral agenesis along with other findings of spinal dysraphism. However, the best fitting diagnosis for the claimant was caudal regression syndrome. In this disorder, the lower half of the body does not develop properly, including neural tube defects and gastrointestinal abnormalities. Findings can include spina bifida, scoliosis, imperforate anus, misshapen or absent vertebrae (sacral agenesis) and tethered cord syndrome.

Given all his findings, to include partial sacral agenesis, imperforate anus, abnormal L4-L5 nerve roots, scoliosis, tethered cord, and everything else mentioned in the tabbed medical evidence, the examiner opined the claimant clearly has much more than spina bifida occulta. While there is no documented myelomeningocele or meningocele, his other structural and neurologic abnormalities were not in keeping with spina bifida occulta. Rather they are in keeping with more serious neural tube defects like spina bifida, or better yet, caudal regression syndrome. The examiner opined the best fitting diagnosis for the claimant is caudal regression syndrome. However, if forced to choose between just the two diagnoses of spina bifida or caudal regression syndrome, there was more than sufficient evidence to support a diagnosis of spina bifida other than spina bifida occulta. 

Based on the foregoing, the Board finds that the weight of the supports the finding that the claimant's disability, in this particular case, is a form of spina bifida. 

The U.S. Court of Appeals for Veterans Claims (Court) has 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 claimant in this case was diagnosed with another form or manifestation of spina bifida; namely, caudal regression syndrome, spinal dysraphism, NTD, partial sacral agenesis, imperforate anus, abnormal L4-L5 nerve roots, scoliosis, and tethered cord, which collectively most nearly approximates the symptomatology of spina bifida.  Although the October 2018 and January 2020 VA examiners opined the claimant's disabilities were not a form or manifestation of spina bifida, the September 2020 VA examiner along with two private physicians (Dr. N.J., Dr. Z.B.) in October 2015, March 2018 and April 2020 statements, opined that the collective effect of the claimant's disabilities manifested into a form of spina bifida. 

While all examiners provided thorough rationales for their opinions, only the September 2020 VA examiner was privy to the complete evidentiary record. The opinion contained clear conclusions with supporting data and well-reasoned rationale. Therefore, the September 2020 VAMO is afforded great weight. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) and NievesRodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two").

 Likewise, the private opinions dated October 2015, March 2018 and April 2020 are afforded partial weight as they considered the claimant's symptomatology to determine if his condition was a form or manifestation of spina bifida, responsive of the matter at issue, in line with Jones and VA regulations. 

By contrast, the October 2018 and January 2020 VAMOs have diminished probative value as they were based upon an incomplete evidentiary record and upon an inaccurate medical premise that a diagnosis of spina bifida is narrower than as explained by the Court (note - the examiners did not respond to the AOJ's request of whether the claimant had "a form or manifestation of spina bifida."). See Reonal v. Brown, 5 Vet. App. 458, 461 (1993)(an opinion based upon an inaccurate factual premise has no probative value).

On balance, the Board finds that the evidence supports the finding that the claimant's disabilities, in this case, manifests as a form of spina bifida. Thus, in sum, as the evidence shows the veteran served in the Republic of Vietnam during the Vietnam era, the claimant is his biological child born after his service, and the claimant 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 warranted.

Accordingly, the claim is granted.

 

C.A. SKOW

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.