Citation Nr: 21031213 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 01-03 511A DATE: May 20, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1805 for a child of a Vietnam veteran born with spina bifida is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the appellant has a form or manifestation of spina bifida. 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 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 served on active duty from April 1968 to April 1970, including in the Republic of Vietnam. The appellant is the Veteran's son. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2000 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2001, a hearing was held before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In December 2001, the Board denied the claim. The Veteran appealed the Board's December 2001 decision to the United States Court of Appeals for Veterans Claims (Court). In October 2002, the Court granted a Joint Motion for Remand (Joint Motion) vacating and remanding the Board's December 2001 decision. The Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) in November 2004. In August 2005, the Board informed the Veteran that the VLJ who held his hearing in July 2001 was no longer employed by the Board and offered him another hearing before a different VLJ. Later that month, the Veteran informed the Board that he did not want another hearing. Therefore, his Board hearing request is deemed satisfied. See 38 C.F.R. § 20.704. In November 2005, the Board again denied the claim. In January 2007, the Court granted a second Joint Motion and vacated and remanded the Board's November 2005 decision. In July 2007, the Board again remanded the case to the AOJ. In January 2010, the Board again denied the claim. In November 2010, the Court granted a third Joint Motion and vacated and remanded the Board's January 2010 decision. In February 2012, the Board again remanded the case to the AOJ. In January 2013, the Board again denied the claim. In April 2015, the Court reversed the Board's January 2013 finding that VA had met its duty to assist the Veteran and vacated and remanded the Board's January 2013 decision. In March 2016, the Board again remanded the case to the AOJ for further development. In January 2020, the Board again denied the claim. In September 2020, the Court granted a Joint Motion and vacated and remanded the Board's January 2020 decision. Entitlement to compensation under 38 U.S.C. § 1805 for a child of a Vietnam veteran born with spina bifida The appellant asserts that he is entitled to compensation under 38 U.S.C. § 1805 because he is the child of a Vietnam veteran and has been diagnosed with a form or manifestation of spina bifida. 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. See 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814; see also, e.g., 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. 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. Jones v. Principi, 16 Vet. App. 219, 225 (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). In this case, the appellant, through the Veteran, contends that he is entitled to a monetary allowance under 38 U.S.C. § 1805 for spina bifida. The appellant asserts that his father's in-service herbicide agent exposure while on active service in the Republic of Vietnam caused or contributed to the appellant developing symptoms consistent with spina bifida. A March 2003 response from the National Personnel Records Center reflects that the Veteran served in Vietnam from September 1968 to April 1969. The Veteran is therefore a Vietnam veteran for purposes of 38 C.F.R. § 1805. The appellant is the Veteran's son, born after the Veteran's service in Vietnam. The question before the Board is whether the appellant has had symptoms of a form or manifestation of spina bifida, other than spina bifida occulta. The case involves a Vietnam Veteran's child who currently manifests clinical symptoms as seen in cases of children manifesting a form of spina bifida, but a controversy exists among experts as to whether any and/or all of those clinical symptoms may be indicative of an underlying form of spina bifida in this particular child, or may be exclusively attributed to a hypoxic brain injury occurring at the age of 9 months. Medical Background The appellant was born in March 1985. In March 1985, he was noted to be "lethargic & hypothermic" otherwise described as "infant sleepy, but responsive to stimulation." A March 1985 CT scan of the head was interpreted by radiologist M.L.S.G., M.D., noted that no hydrocephalus was apparent. The radiologist also noted, "The study is suggestive of increased intracranial pressure, although, the etiology can not be determined from this examination." The appellant was discharged in April 1985, with a diagnosis of "Newborn, term living male, borderline, small for gestational age" and "Hypoglycemia." It was noted that a lumbar puncture was performed on April 1, 1985. The appellant's 4-week follow-up visitation on April 24, 1985 noted that his head circumference (HC) was at the 75th percentile with his anterior fontanel open and soft. Otherwise, an evaluation of his other bodily systems, including neurological and musculoskeletal, were noted as "OK." In January 1986, the appellant was hospitalized with diagnoses of cardiomyopathy, status post cardiopulmonary arrest, and hypoxic cerebral injury. An October 26, 1989 letter from R.L.B., M.D., of the Columbus Children's Clinic, stated as follows: I have followed [the appellant] since his birth.... [He] experienced an illness known as cardiomyopathy when he was 9 months old. This is a severe viral infection of the heart. [He] had a cardiopulmonary arrest during his illness and suffered hypoxic cerebral injury. This has left him severely neurologically impaired. An April 7, 2000 letter from P.S., M.D., stated as follows: [The appellant] is a patient of mine. He has a diagnosis of seizure disorder and cerebral palsy. The diagnosis [is] secondary following a cardiomyopathy. He has severe developmental delay and mental retardation. A May 2012 private treatment record from Dr. O.E. reflects that the appellant had severe organic brain syndrome with seizures. The appellant's private treatment records do not note any treatment or diagnosis of spina bifida. Medical Opinions In January 2003, VA received an opinion from C.N.B., M.D., a Neuro-Radiologist. Dr. C.N.B. stated that he reviewed the appellant's claims folder and medical records and listed all the information he reviewed. Dr. C.N.B. opined that: It is my opinion that this patient had a brain defect prior to his 1986 near death episode and that this brain defect contributed substantially to his current mental deficits and that these defects are due to his parent's exposure to Agent Orange for the following reasons: 1. His head CT findings of 1985 are consistent with the spectrum of findings that I would expect to see in a patient with Central nervous system defects/neural tube defects secondary to Agent Orange. In fact this patient had "...a portion of the frontal pole appears to be filling the anterior fontanalle..." which is very consistent with magalencephaly, which is described below in the neurulation defect sub-classification of Neural tube defects (see Greenberg below). It is my opinion that this patient's abnormal Head CT finding in 1985 were likely due to the spectrum of terms central nervous system defects/neural tube defects/all forms and manifestations of spina bifida and that these defects were likely due to the parent's exposure to Agent Orange. This is a serious brain defect and therefore likely substantially contributes to his current disabilities. 2. The patient had an abnormally enlarging head circumference prior to his near death episode in Jan 1986, which is consistent with the spectrum of cranial problems associated with Neural tube defects. It is my opinion that this patient's abnormal head circumference was due to the spectrum of problems associated with terms central nervous system defects/neural tube defects/all forms and manifestations of spina bifida neural tube defects caused by Agent Orange and likely substantially contributes to his current disabilities. As Dr. C.N.B. provided a full rationale for the opinion based on the evidence of record, including the appellant's childhood medical records, the Board finds that the opinion has probative value. In June 2003, the Board referred the claims folder for an opinion by a neurology expert at the VHA. A July 2003 opinion from neurologist, Dr. G. Dr. G. reviewed the claims file and opined: I think the chronic disorders that are mentioned in this particular case of this child are not a form or manifestation of spina bifida, but seen [sic] most plausibly to be attributable to the child's cardiopulmonary arrest due to his cardiomyopathy that he suffered at nine months. While there is some documentation that the child did not have completely normal neurologic function when he was born, and had an abnormal CT scan at that time. There is not documentation specifically that he had a condition which would fall under the definition of spina bifida. I think that is all I can say in regard to the questions which I am asked to address in this opinion. Dr. G. provided a full rationale for the opinion based on the appellant's medical records. Therefore, the opinion is probative. A January 2004 rebuttal opinion letter from Dr. C.N.B. noted that he had re-reviewed the appellant's medical records for the purpose of making a medical opinion concerning his brain disorder and paid particular attention to the recent 6-page opinion by Dr. G. Dr. C.N.B. stated that he disagreed with opinion and explained why he discounted her assessments. Specifically, he disagreed with her interpretation of the initial CT scan and her finding that the appellant's problems originated form the January 1986 episode of hypoxic injury. Dr. C.N.B. provided a full rationale for his opinion. The Board finds that the opinion has probative value. In July 2004, the Board requested an Independent Medical Expert (IME) opinion. A July 2004 opinion letter from A.L.C., M.D., reviewed the file and opined that: Spina bifida can have many associated clinical conditions and sequelae including each of the chronic conditions of the patient in question. However, as all of these conditions followed the hypoxic cerebral injury and none of them were present at birth, or documented as present at the time of his admission for the cardiomyopathy, it is unlikely that they are the result of spina bifida. In addition, with the exception of the abnormal CT scan at birth, there is no other neuroimaging that suggests a primary CNS abnormality. Even this CT scan is not consistent with failure of closure of the neural tube as the anterior fontanel is a normal physiologic finding in the newborn. So, I do not feel that this represents a form of spina bifida. While each of the patient's chronic conditions may represent a complication or manifestation of spina bifida, I do not feel that this is what they represent in this patient. Rather, I feel that his chronic conditions represent residual deficits and sequelae of hypoxic injury given the chronological occurrence of events. Dr. A.L.C. included a full rationale addressing the appellant's documented lethargy and the CT scans prior to his hypoxic cerebral incident. Therefore, the IME opinion is probative. In an opinion letter dated May 2005, Dr. C.N.B. noted that he had re-reviewed this patient's medical records for the third time in order to make an opinion concerning his current brain damage. Dr. C.N.B. also noted that he had special knowledge in the area of the imaging of brain abnormalities. Dr. C.N.B. noted several inconsistencies in the report by Dr. C., and stated: I think that many of Dr. [C.]'s incorrect opinions likely stem from her unfamiliarity with the neuro-imaging studies as I note she is an Instructor in pediatric neurology and therefore likely does not have any formal training in neuroimaging and/or she did not have the full record to review as she apparently overlooked or did not have the comments by Dr. [G.]/longitudinal head circumference measurements and/or she does not understand the full spectrum of the forms of spina bifida and/or she does not understand the VA concept of benefit of the doubt as it relates to the terms of "as likely as not." In summary, I have discounted the recent SSOC and the opinion of Dr. [C.] for the reason stated above and I do not find any new information in the record that would make be [sic] change my previous two opinions. In June 2005, an opinion letter was received from H.M., M.D., a Board certified Radiologist with specialty training and certification in Pediatric Radiology. Dr. H.M. noted that he had reviewed the patient's medical records and accompanying statements by Dr. [B.] and [C.]. Dr. H.M. concluded that: I agree with Dr. [B.]'s conclusion that the lethargy described in the newborn period, the abnormal head CT, increasing head circumference, and developmental delay are likely manifestations of spina bifida and contribute substantially to the current disabilities. Dr. H.M. provided a full rationale for the opinion, noting that, "While it is unclear to what extent [the patient's] current neurologic deficits are congenital, it is clear that he was neurologically abnormal from birth." Dr. H.M. also noted that they had reviewed the expert opinions of Dr. B and C and disagreed with their conclusions. Dr. H.M. noted that Dr. C. neglected to mention the increasing head circumference and developmental delay described by the mother. As Dr. H.M. provided a full rationale for the opinions based on a review of the evidence of record, the Board finds the opinion to have probative value. Analysis After reviewing the evidence of record, the Board finds that the evidence of record is at least in equipoise as to whether the appellant has a form or manifestation of spina bifida, other than spina bifida occulta. In this case, there are opinions for and against a finding that the appellant has a form or manifestation of spina bifida. The opinions all reflect that the examiners reviewed the claims file and relevant medical evidence including the records from the appellant's childhood. The opinions from Dr. C.N.B, found that the appellant had a form or manifestation of spina bifida, demonstrated by abnormally enlarging head circumference prior to his near death episode in January 1986, which was consistent with the spectrum of cranial problems associated with Neural tube defects. Dr. C.N.B. also provided two rebuttal opinions in response to the other opinions in January 2004 and May 2005 addressing the opinions and finding that the evidence supports a finding of spina bifida. In the June 2005 opinion, Dr. H.M. opined that the lethargy described in the newborn period, the abnormal head CT, increasing head circumference, and developmental delay are likely manifestations of spina bifida. In contrast, in the July 2003 VHA opinion and July 2004 IME opinions, the examiners opined that the appellant's conditions were not a form or manifestation of spina bifida. The July 2003 and July 2004 opinions also provided a rationale for the opinions based on the evidence of record. Although the Dr. G and Dr. A.L.C. interpreted the medical evidence differently from Dr. C.N.B. and Dr. H.M., it is clear that all the physicians based their opinions on a review of the appellant's childhood medical records, including his records as a newborn and of the hypoxic brain injury occurring at the age of 9 months. While Dr. C.N.B. and Dr. H.M. opined that the evidence showed the appellant's conditions predated the hypoxic brain injury and were a form or manifestation of spina bifida, Dr. G and Dr. A.L.C. opined that the conditions were likely related to the hypoxic brain injury and were not a form or manifestation of spina bifida. The physicians also provided curriculum vitae indicating they all have the relevant training, experience, and medical knowledge to address this issue. As there are probative opinions for and against a finding that the appellant had a form or manifestation of spina bifida, and the opinions contained thorough rationales based on the medical evidence of record, the Board finds that the evidence is at least in equipoise as to whether the appellant has a form or manifestation of spina bifida, other than spina bifida occulta. As the evidence of record is at least in equipoise as to whether the appellant has had a form or manifestation of spina bifida, other than spina bifida occulta, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In conclusion, the appellant's father had qualifying service in Vietnam prior to the appellant's birth and the evidence is at least in equipoise as to whether the appellant has a form or manifestation of spina bifida, the criteria for a monetary allowance under 38 U.S.C. § 1805 for a Vietnam veteran's child on account of spina bifida have been met. Accordingly, the claim is granted. Nathaniel Doan 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.