Citation Nr: 21027510 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 12-17 529A DATE: May 5, 2021 ORDER Entitlement to benefits under the provisions of 38 U.S.C. § 1805 or §1815 for a child of a Vietnam Veteran born with spina bifida or other birth defects is denied. FINDING OF FACT 1. The appellant's biological father is a Vietnam veteran; the appellant's biological mother is not a Vietnam veteran. 2. The appellant has not been shown to have a form or manifestation of spina bifida. CONCLUSION OF LAW The criteria for establishing benefits under the provisions of 38 U.S.C. § 1805 or §1815 for a child of a Vietnam veteran born with spina bifida or other birth defect have not been met. 38 U.S.C. §§ 1802, 1805, 1811, 1812, 1815; 38 C.F.R. §§ 3.814, 3.815. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to June 1970, including service in the Republic of Vietnam from July 1967 to December 1967. The appellant is the Veteran's daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a hearing before the undersigned Veterans Law Judge in August 2016. A transcript of the hearing is associated with the record. This case was previously remanded by the Board for further development in December 2017 and July 2020. The claim returns for appellate consideration. The Board apologies for the delay. Entitlement to benefits under the provisions of 38 U.S.C. § 1805 or §1815 for a child of a Vietnam veteran born with spina bifida or other birth defects The appellant initially asserted her cranial, facial, venous, arterial, brain, heart neurological, skin, pulmonary, skeletal, and congenital defects were caused by her father's exposure to herbicide agents while serving in the Republic of Vietnam. She later testified at the August 2016 hearing that she sought benefits for spina bifida; she was diagnosed with the condition as a child and again in 2008. See VA 21-0304 Application for Spina Bifida Benefits (September 2010), Form 9 (July 2012), and Hearing Testimony (August 2016). 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) (emphasis added). 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). For purposes of benefits under 38 U.S.C. § 1805, "the term '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). To qualify for a monthly allowance for birth defects other than spina bifida, the Appellant must show that the Vietnam Veteran who was exposed to herbicide agents is his or her mother. 38 U.S.C. §§ 1812, 1815; 38 C.F.R. § 3.815. Spina bifida is the only birth defect which warrants an award of monetary benefits based on the herbicide agent exposure of a Vietnam Veteran who is the father of the child at issue. See Jones, 16 Vet. App. at 219. 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). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Republic of Vietnam" includes the 12-nautical mile territorial sea. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). In this case, the Appellant's father is a Vietnam veteran. However, the appellant has stated that her mother did not have Vietnam service. VA 21-0304 Application for Spina Bifida Benefits (September 2010). Accordingly, entitlement to compensation for birth defects is denied because the absence of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law, and not the evidence is dispositive, the claim should be denied due to the absence of legal merit or lack of entitlement under the law). The only question that remains before the Board is whether the Appellant has had a diagnosis of spina bifida, other than spina bifida occulta. The Board concludes that the Appellant does not have a diagnosis of spina bifida. The appellant submitted private treatment records (PTRs) from various facilities. October 2008 PTRs show the appellant sought treatment for sudden onset of right lower facial drooping (motor neuron-type of facial palsy), numbness and drying of the eyes. MRI of the brain showed an abnormal enhancement of the right 7th cranial nerve, consistent with Bell's palsy. There was also an apparent arterial venous malformation involving the posterior fossa with possible venous varis or aneurysm. Another MRI showed a small area of bulbous enhancement along the posterior left lateral aspect of the brainstem at the 5th cranial nerve with a possible mild mass effect upon the nerve root structure. CT of the brain taken later that month showed vascular malformation in relation to the left cerebellum, which was diagnosed as most likely representing a developmental venous anomaly. November 2008 PTRs show the appellant was assessed as having neural tube defects of the autonomic regulatory system (dysautonomia), brain stem, and spinal cord (spina bifida). December 2008 PTRs include a diagnostic cerebral angiogram, which was provided in conjunction with the appellant's diagnosis of Bell's palsy. The resulting impression was left superior cerebellar hemispheric developmental venous anomaly and a normal anatomic variant. However, subsequent treatment records make no mention of spina bifida. May 2011 PTRs include a chest CT, which showed no abnormality of the spine; only lung findings (calcified granuloma of the right upper lobe and minimal atelectasis), a contracted gallbladder and a left adrenal adenoma. A June 2011 nursing school physical showed the appellant had a normal musculoskeletal system with no neck or back pain and normal extremities (no myalgia, no arthralgia, no upper or lower extremity weakness or pain). March 2015 PTRs show a private physician, Dr. J.C., attributed the appellant's various pain due to fibromyalgia. However, the appellant refused the diagnosis because she did believe in fibromyalgia. Dr. J.C. used an alternative diagnosis of central sensitivity syndrome along with hypermobility and Sjogren's syndrome to explain her symptoms. There was no mention of a diagnosis of spina bifida. April 2015 private chiropractic records show the appellant has segmental dysfunction of the cervical, thoracic, and lumbar spine segments. There was no indication of a diagnosis of spina bifida. August 2015 PTRs include an examination of the back where there were no abnormalities: no curvature in the back and with a normal range of motion. She was noted to be neurologically normal. In December 2017, the Board remanded this claim for a VA examination. The examiner was asked to opine whether it was at least as likely as not that the appellant had a form or manifestation of spina bifida, except spina bifida occulta. It was noted that the term "spina bifida" for the purposes of title 18 benefits refers to a defective closure of the bony encasement of the spina cord but does not include other neural tube defects such as anencephaly and encephalocele. In providing an opinion, the examiner was asked to reflect consideration of the October to November 2008 PTRs, to include the MRI reports, CT reports, the November 2008 assessment of "neural tube defects of the autonomic regulatory system (dysautonomia), brain stem, and spinal cord (spina bifida)" and the December 2008 diagnostic cerebral angiogram report. On March 2020 VA examination, a VA neurologist found the appellant had no neurological diagnoses and did not have a diagnosis of spina bifida. The rationale was that there was nothing found in her records to indicate spina bifida and there was a lack of diagnosis to be found in her records. During the exam, the appellant showed no symptoms or anything indicating a diagnosis. In July 2020, the Board remanded the claim once more for an addendum opinion because the VA examiner did not consider the pertinent records that showed a diagnosis of "neural tube defects...of the spina cord (spina bifida)" as set forth in the October 2008 to December 2008 PTRs. In February 2021, another VA neurologist reviewed the entire file and opined the appellant did not have a neural tube defect or spina bifida. The rationale was that the appellant had symptoms of dry eye and a positive ANA test without Titers, but it did not constitute a dysautonomia diagnosis (a very serious illness affecting all the entire vegetative autonomic system). The November 2008 Illinois Neurologic Institute Consultation shows she had an acute onset of right sided Bell's palsy in September 2008 while working the third shift. There were some atypical features and so she underwent neuroimaging studies. The Bell's palsy has now completely resolved. The CT, CTA, and MRI that were subsequently performed showed a vascular abnormality of the left posterior fossa. However, the finding is not consistent with a neural tube effect; instead, it is simply an arterial malformation in the hindbrain (left cerebellar hemisphere nonspecific), which was found as an incidental finding. The record does not show the absence of boney encasement anywhere along the cranium and spine. Further, the record does not include other neural tube defects such as anencephaly and encephalocele. In addition, the clinical features noted in the record are not consistent with dysautonomia. Dysautonomia can be acquired or heredity. The hereditary presentation includes symptoms of sensory loss in one or several limbs, anhidrosis lack of sweating, and ulceration, likely related to lack of innervation. The evidence is not consistent with such a diagnosis. Therefore, there is no evidence of a neural tube defect, spina bifida or spina bifida occulta. Based on the foregoing, the Board finds appellant does not meet the requisite criteria for eligibility to benefits under 38 U.S.C. § 1805. The medical evidence does not establish that appellant has spina bifida, other than spina bifida occulta. The Board finds that the February 2021 addendum opinion by a VA neurologist provides the most probative evidence. The probative value of medical opinion evidence is based on the physician's knowledge and skill in analyzing the data and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the February 2021 VA neurologist possessed the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is also shown to have been based on a thorough review of the appellant's record, is accompanied by a detailed neurological history and sufficient explanation that the appellant does not have spina bifida or a diagnosis of a neural tube defect. As the VA examiner's opinion was based on a review of the pertinent medical history and was supported by sound medical rationale, it provides compelling evidence against the appellant's claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion"); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the claimant's position). Accordingly, the February 2021 VA addendum opinion is afforded great probative value. The Board recognizes that the VA neurologist did not address the specific question of whether the appellant's condition was a form or manifestation of spina bifida, as had been requested in the Board's remand. However, it is clear from the VA neurologist's conclusion that the appellant does not have, nor has ever had, a neural tube defect, spina bifida or spina bifida occulta. The VA examiner clarified that it was a misdiagnosis and explained the clinical findings presented would not be consistent with spina bifida or dysautonomia or any other dysfunction of the nerves. This conclusion is clear, providing evidence against the key issue in this case of high probative value. Moreover, as noted above, the VA neurologist thoroughly reviewed the entire claims file, prior to rendering his opinion. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that only substantial compliance, not strict compliance, with the terms of an opinion request is required). The Board acknowledges the appellant's contention that she believes she was diagnosed with spina bifida and that she has medical training as a nurse. However, the appellant has not been shown to have the experience, education, and training necessary to make a competent etiology opinion with regard to the complexity of a neurological condition diagnosis, to include spina bifida, a condition outside the scope of the appellant's scope. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Therefore, her opinion is of little probative weight. Sklar v. Brown, 5 Vet. App. 140 (1993). Based on the foregoing, the appellant does not meet the requisite criteria for eligibility to benefits under 38 U.S.C. § 1805 or §1815. There is no competent medical or lay evidence showing that the appellant has been diagnosed with any form or manifestation of spina bifida. Without any finding of spina bifida or a showing that the appellant's mother is a Vietnam veteran, there is no legal basis on which to grant benefits in this instance. (Continued on the next page) The Board is sympathetic to the appellant's medical conditions and grateful for her father's honorable service to his country. However, the Board must apply the law as promulgated and is bound by statute and regulations. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). Further, the Board is without authority to grant benefits because the Appellant might perceive such a grant to be equitable. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The law is dispositive. The claim is denied because of the absence of legal merit or entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). John J. Crowley 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.