Citation Nr: 21027519 Decision Date: 05/06/21 Archive Date: 05/05/21 DOCKET NO. 13-17 189 DATE: May 6, 2021 ORDER Entitlement to benefits under 38 U.S.C. § 1805 for a child born with spina bifida is denied. FINDING OF FACT The appellant does not have a form or manifestation of spina bifida, other than spina bifida occulta. CONCLUSION OF LAW The criteria for establishing benefits under the provisions of 38 U.S.C. § 1805 for a child born with spina bifida have not been met. 38 U.S.C. §§ 1802, 1805 (2012); 38 C.F.R. § 3.814 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had service from September 1969 to April 1971, including service in Vietnam from March 1970 to April 1971. The appellant is the Veteran's adult daughter. This matter comes before the Board of Veterans' Appeals (Board) on Appeal from a November 2011 decision letter of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at an April 2017 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This case was previously before the Board in September 2017, at which time the claim was denied. The appellant appealed the Board's September 2017 decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2018, his representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with the directives specified. The Court issued an order the same month granting the Joint Motion, and returned the case to the Board. In January 2019 and October 2020, the Board remanded the claim for additional development. Entitlement to benefits under 38 U.S.C. § 1805 for a child born with spina bifida is denied The appellant asserts that she has spina bifida as a result of her father's exposure to herbicide agents while serving in the Republic of Vietnam. 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). VA will provide certain benefits for an individual with a disability from certain birth defects whose mother is a Vietnam veteran. See 38 U.S.C. §§ 1812, 1815; 38 C.F.R. § 3.815. 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). Spina bifida is the only birth defect which warrants an award of monetary benefits based on the herbicide agent exposure of a veteran who is the father of the child at issue. Jones v. Principi, 16 Vet. App. 219, 225 (2002). To qualify for a monthly allowance on the basis of other birth defects, the appellant must show that the veteran who was exposed to herbicide agents is his or her mother. 38 U.S.C. §§ 1812, 1815; 38 C.F.R. § 3.815. 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). 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). In this case, an October 2011 National Personnel Records Center response reflects that the Veteran served in the Republic of Vietnam from March 1970 to April 1971 and is therefore a Vietnam Veteran for purposes of 38 C.F.R. § 3.814. The appellant's mother is not a Veteran. The question remaining before the Board is whether the appellant has a diagnosis of spina bifida, other than spina bifida occulta. The appellant has asserted that she was born with spina bifida in 1977. An October 1980 Shriner's Hospital treatment record indicates that eight months prior, a small swelling was noted in the midline just above the gluteal cleft; this has been called variously a lipoma or meningocele by physicians. Another October 1980 Shriner's Hospital treatment record indicates a diagnosis of spina bifida. The Board notes that it appears the phrase "five, spina bifida" appears to have been inserted later as it is a different color and size from the other text. In a December 2019 letter, VA requested that the appellant complete a VA Form 21-4142 to request records from Shriner's Hospital for Children from October 1980. In an April 2020 letter, the appellant stated that as she had previously submitted Shriner's records, she did not want to lengthen her claim processing time and she was not comfortable signing the VA Form 21-4142. Shriner's Hospital records from October 1994 note a history of juvenile rheumatoid arthritis with vague hip pain. An October 1994 lumbar spine X-ray indicated no vertebral segmentation abnormalities other than the suggestion of very mild partial sacralization of L5. The sacroiliac joints were noted to be normal. A VA opinion was obtained in November 2016. The VA examiner opined that it was not as likely as not that the appellant has either a form of or a manifestation of spina bifida. The primary diagnosis was back pain. There was no finding of a defect or closure of the spine or other neural tube elements. The examiner stated that a Shriner's Hospital record from October 1980 noted a small welling in the midline just above the gluteal cleft that has been called variously a lipoma or meningocele by physicians. A February 2016 letter from Dr. A.C. states that he has been treating the appellant for spina bifida since 2010. In another February 2016 letter, Dr. N.A. stated that the appellant has a documented history of spina bifida. In a December 2016 opinion, Dr. A.C. stated that the appellant was born with, and was living with spina bifida. Dr. A.C. stated that her untreatable blood clotting issues are directly related to her father's agent orange exposure. At the April 2017 hearing, the appellant testified that she remembered being diagnosed with spina bifida and having to undergo physical therapy as a child. She also testified that she was missing two whole vertebrae in her lower spine. The Board notes that at the hearing, the Veteran's representative asserted that meningocele is a type of spina bifida that does not fall under the occulated definition. In February 2020, a copy of a definition of meningocele, noted to be one of the three most common types of spina bifida, was submitted by the appellant. Meningocele is defined as a sac of fluid without the spinal cord coming through the opening in the infant's back. A January 2019 letter from Dr. N.A. stated that the appellant was born with spina bifida and hydrocephalus. She required a needle decompression for her hydrocephalus. In a January 2020 letter, Dr. A.C. stated that the appellant was born with spina bifida. The appellant struggled with low back pain associated with spina bifida, as well as multiple deep vein thrombosis and Factor V Deficiency. Upon further evaluation with Dr. K., Dr. A.C. stated that it has been determined from a CT scan of the spine in November 2019, that the appellant had incomplete arches at L5 and S1, which were consistent with spina bifida. In an August 2020 opinion, a VA examiner found that there is no likely objective clinical pattern of any other conditions other than the pattern of spina bifida occulta in view of the details noted on the January 21, 2020 radiological finding and above definition of Spina Bifida Occulta. Thus, it is not likely that any of the claimant's clinical findings, including the L5 sacralization and incomplete arches at S1 and L5, are forms, or manifestations, of spina bifida cystica, as opposed to spina bifida occulta. However, the examiner did not explain why there was no likely objective clinical pattern of any other conditions other than spina bifida occulta based on the January 2020 radiological findings and other clinical findings or address the private opinions. Therefore, the opinion has little probative value. In the October 2020 remand, the Board asked the RO to schedule a VA examination and opinion addressing whether the appellant has a form or manifestation of spina bifida, except spina bifida occulta. In a March 2021 VA opinion, the examiner opined that the appellant's spina bifida is more likely spina bifida occulta and less likely spina bifida cystica (meningocele or myelomeningocele). The examination report indicates the VA examiner conducted an in-person examination and reviewed the appellant's folder. The examiner noted the appellant's history, including the October 1980 treatment record indicated she developed a small swelling just above the gluteal cleft with a question of lipoma or meningocele, but no clinical pattern of skin defect. The examiner stated that as per the appellant's history of no surgeries on her back related to spina bifida cystica (meningocele or myelomeningocele), as per current exam without any external abnormalities like skin bulging/protrusion or scars in the back, and as per review of literature, spina bifida occulta is the Latin word for "hidden" where the only abnormality is a defect in the vertebral arch without any external abnormalities. The examiner noted that meningocele and myelomeningocele which are forms of spina bifida cystica are associated with skin/integumentary protrusion near the spine. The examiner stated that there is no evidence of any skin lesion or dermal defects and Dr. K.'s note in January 2020 also mentioned normal integumentary/skin exam and her surgical history did not mention any surgeries for meningocele or myelomeningocele. In a March 2021 addendum opinion, the examiner noted that they had reviewed all of the medical data including Dr. A.C.'s medical opinion and Dr. N.A.'s opinion. The examiner stated that the Shriner's Hospital records indicated there was no evidence the appellant was born with spina bifida and she developed a small swelling above the gluteal cleft when she was more than 2 years old. A follow up exam in 1985 noted a normal neurological exam. Neurologist A.Y.'s examination at a later time documented no evidence of meningocele or spina bifida cystica or related skin lesions or dermal defects. Hence as per current exam and detailed review of medical records, the appellant's current spina bifida is most likely spina bifida occulta. After a full review of the record, the Board finds that the preponderance of the evidence is against a finding that the appellant has spina bifida, other than spina bifida occulta. The records from the appellant's childhood at Shriner's Hospital do not show a diagnosis of spina bifida, other than spina bifida occulta. As noted above, it appears the text "spina bifida" was added to the records. The February 2016 and December 2016 and January 2020 statements from Dr. A.C. and February 2016 and January 2019 statements from Dr N.A. indicate that the appellant had a diagnosis of spina bifida. However, the statements do not indicate that the appellant had a form or manifestation of spina bifida other than spina bifida occulta. The statements that the appellant has spina bifida also fail to include a full rationale for the opinions. In the January 2020 opinion, Dr. A.C. stated that the appellant did not have incomplete arches at L5 and S1, which was consistent with spina bifida, however, Dr. A.C. did not explain why that was consistent with spina bifida. Therefore, the private opinions have limited probative value. The March 2021 VA examiner found that the appellant's spina bifida was more likely spina bifida occulta and less likely spina bifida cystica. The Board finds the March 2021 VA opinion and addendum opinion to be more probative than the other medical evidence of record as the examiner provided a full rationale for the opinions based on a full review of the evidence of record. As the VA examiner's opinion was based on a review of the pertinent medical history and was supported by 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"). Therefore, the most probative evidence of record is against a finding that the appellant has spina bifida, other than spina bifida occulta. Although the appellant has asserted that she has had spina bifida since birth, the appellant is not competent to opine that she has a form or manifestation of spina bifida other than spina bifida occulta as this is a complex medical matter that is not susceptible to lay observation. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In order to receive benefits under 38 U.S.C. § 1805, it must be shown that the appellant has a form or manifestation of spina bifida, other than spina bifida occulta. As the preponderance of the preponderance of the evidence is against a finding of a diagnosis of spina bifida, other than spina bifida occulta, there is no legal basis on which to grant benefits in this instance. The Board acknowledges the Veteran's honorable service to his country, including his service in Vietnam, and sympathizes with the appellant's history of childhood illness. However, it must apply the law as promulgated and is bound by VA 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). Accordingly, the claim for benefits under 38 U.S.C. § 1805 for a child born with spina bifida is denied. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Marenna, 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.