Citation Nr: 21012163 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 19-37 276 DATE: March 3, 2021 REMANDED Benefits under 38 U.S.C. § 1805 for a child born with spina bifida.   REASONS FOR REMAND The Veteran served on active duty from July 1969 to September 1970, including service in the Republic of Vietnam during the Vietnam War era. The appellant is the Veteran’s biological daughter. The case is on appeal from an August 2018 rating decision. The case was previously before the Board in January 2020, at which time the claim for benefits pursuant to 38 U.S.C. § 1805 for a child born with spina bifida was remanded for additional development. Benefits under 38 U.S.C. § 1805 for a child born with spina bifida. The appellant has asserted that she has spina bifida as a result of her father’s exposure to herbicide agents during active service. She contends that her scoliosis is a manifestation of her congenital neural tubal defect, myelomeningocele, and that she was misdiagnosed in 2001 and 2006 medical records. See December 2020 correspondence. The RO found that the Veteran’s service aboard the USS Anchorage was qualifying Vietnam service. Therefore, he is presumed to have had exposure to herbicide agents. See 38 U.S.C. § 1805; 38 C.F.R. § 3.814. Following the January 2020 Board remand, the RO requested the appellant complete a release form for Dr. A.N. of Lake Mead Care Center, whom she states had diagnosed her with neuro tubal defect/myelomeningocele/spina bifida. However, the appellant contacted the RO indicating that she had not completed a release for Dr. A.N., the request for those records “has been closed,” and was alternatively submitting records from Dr. R.A., who is a regular treating doctor and “knows her condition better.” See May 2020 Report of General Information. The Board also observes that the Social Security Administration (SSA) records of the appellant associated with the claims file include, at least partial, medical records from Dr. A.N. In May 2020, Dr. R.A. submitted an opinion stating that he had been treating the appellant since August 2018 as a pain medicine specialist. He opined that after reviewing the patient’s records, her pain conditions are “likely due to congenital defect (spina bifida) as well as degenerative changes from daily living.” The medical records from the pain clinic at which the appellant receives treatment from Dr. R.A. were also submitted. It is noted that spina bifida is not listed as a diagnosis in the medical records, but rather the appellant reports that she has a history of spina bifida myelomeningocele. A VA examination was completed in July 2020. The examiner, after reviewing the claims file and with consideration of Dr. R.A.’s positive opinion, stated it would be best if a neurologist or neurosurgeon provided the opinion as to whether it is at least as likely as not (50 percent or greater possibility) that the appellant has a form or manifestation of spina bifida, but not spina bifida occulta. In August 2020, a neurosurgeon conducted a records review and provided an opinion as to whether there has been a diagnosis, or manifestation, of spina bifida pursuant to the requirements of 38 U.S.C. §§ 1802 and 1805. The examiner concluded the records do not document or lead to a diagnosis of spina bifida. He noted that an August 2001 MRI of the brain, cervical, thoracic, and lumbar spine showed no significant abnormalities other than scoliotic curvature, and that the treating surgeon for her back surgery at that time did not identify spina bifida but rather inserted Harrington rods into her back to treat her scoliosis. The Board observes that, at her in-person VA examination in July 2020, the appellant described that problems with her spine are associated with seizures that occur 3 to 4 times per week, and that she sees a neurologist for them, Dr. X. This matches with a report in her disability evaluation for SSA that she was referred to a neurologist by the name of Dr. X. The Board has thoroughly reviewed the evidence of record, and have not identified medical records from Dr. X., or a request for them. Given the importance of the diagnosis element in establishing benefits pursuant to 38 U.S.C. § 1805, the outstanding private treatment records of a treating neurologist has a high likelihood of relevance, and a remand is required to allow VA to obtain authorization and to request these records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: Ask the appellant to complete a VA Form 21-4142 for Dr. X, the neurologist identified at the July 2020 VA examination, and ask the Veteran to identify any additional treatment providers. Make two requests for the authorized records from Dr. X. and any other records identified, unless it is clear after the first request that a second request would be futile. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morford, 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.