Citation Nr: 21031966 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-01 300 DATE: May 25, 2021 ORDER Entitlement to service connection for spina bifida, to include entitlement to benefits for spina bifida under 38 U.S.C. § 1805, based on the Veteran's father's service in the Republic of Vietnam, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran does not have spina bifida, other than spina bifida occulta. 2. The Veteran's spina bifida occulta is a congenital defect and was not subject to a superimposed disease or injury during military service. 3. The Veteran has no service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for establishing benefits under the provisions of 38 U.S.C. § 1805 for a child born with spina bifida are not met. 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814. 2. The criteria for service connection for spina bifida occulta, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1153, 5107(b); 38 C.F.R. §§ 3.303, 4.9. 3. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.321 (b)(1), 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1996 to July 1998. In August 2018, he testified at a hearing before a Veterans Law Judge. A transcript of that hearing is of record. The case was remanded by the Board in February 2019 for additional development. Service Connection The Veteran is seeking service connection for spina bifida based on two theories of entitlement to benefits. First, he asserts that he is entitled to compensation under 38U.S.C. § 1805, based on his father's exposure to herbicide agents while serving in in the Republic of Vietnam. In the alternative the Veteran claims that his spina bifida was aggravated by his own military service. See February 2019 Board Remand. Service treatment records show the Veteran was referred for a Medical Evaluation Board (MEB) for right wrist problems. At that time no lumbar spine abnormalities were highlighted. These records do show the Veteran was evaluated for complaints of low back pain in March 1998 following a spinal tap. A June 1998 urological evaluation shows spina bifida occulta, apparently an incidental finding, during KUB (kidney, ureter, and bladder) testing. There are no records documenting an in-service back injury and There is also no indication that the Veteran had a need for continued or ongoing medical care due to any back problems in the immediate years after his separation from service in 1998. The next relevant evidence is post service treatment records from 2010 that confirm the diagnosis of incomplete spina bifida of L5. There was also a finding of degenerative disc disease. See April 2010 X-rays report. These records also include a VA outpatient treatment note from December 2011 which shows the Veteran was evaluated for back pain which began 3 years earlier after falling from an electric/telephone pole at work. He indicated that he landed on his feet and instantly had low back pain radiating down both legs. At that time the Veteran also expressed concern about his spina bifida occulta and was educated on the benign nature of the incomplete spina bifida occulta and informed that it was unrelated to pain. See VA Pain Consult Note dated December 7, 2011. During VA examination in January 2011 the Veteran reported that he began having back problems at age 9 and was told he had sciatica but was never X-rayed. He denied any back injuries during service but stated that heavy lifting and physical training worsened his back condition. The Veteran also reported stated that he was told only last year that he had incomplete spina bifida when the VA diagnosed it on MRI. When examined by VA in January 2021, the Veteran reported the onset of lower back pain and frequent urinary tract infections due to neurogenic bladder in 2009. He eventually saw a neurologist who diagnosed spina bifida. After reviewing the Veteran's history and conducting an examination, the examiner found that it less likely than not that the spina bifida was exacerbated by an in-service event injury or illness. The examiner noted that the Veteran reported a history of childhood back pain that was never formally evaluated or diagnosed. There are also no service records from enlistment or separation that indicate any spine problems. The examiner also referred to post-service findings of incomplete spina bifida of L5 that was benign and unrelated to pain. The Veteran's pain was considered likely facet osteoarthritis versus discogenic. Benefits under 38 U.S.C. § 1805 for a child born with spina bifida of a Vietnam Veteran 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. 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). 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). 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). Military Personnel Records, uploaded to the electronic claims file in January 2021, confirm the Veteran's father had service in the Republic of Vietnam from January 1969 to January 1970 and is thus, a Vietnam veteran. The record also indicates that the Veteran is his biological son conceived after service. See Birth Certificate, received in September 2010. However, the evidence does not show that entitlement to compensation is warranted. To the extent that the Veteran has been diagnosed with spina bifida, it has been medically identified as spina bifida occulta. This disorder is specifically excluded by statute and regulation ("except spina bifida occulta"). Therefore, he does not meet the criteria for benefits under 38 U.S.C. § 1802. The law does not provide flexibility in this case. 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). As the law is dispositive of the issue on appeal, the claim must be denied because of the absence of legal merit or entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Spina bifida occulta The Veteran is seeking service connection for spina bifida occulta, a congenital defect. Congenital conditions, by definition, occur at birth and necessarily pre-exist military service. The law provides that Veterans are presumed sound upon entry into service except for conditions noted upon entry or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such disorders as are recorded in examination reports are considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). When no preexisting condition is noted upon entry into service, a veteran is presumed sound. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir.2004). The Secretary must rebut the presumption of soundness with "clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012) (emphasis added). History of pre-service existence of disorders recorded at the time of examination does not constitute a notation of such disorders but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304 (b)(1). In the case of congenital abnormalities, service connection may be established for a disease of congenital origin that first manifests during service or preexisted service but progresses beyond its natural progression during service. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). On the other hand, a congenital defect is not considered a disability for which service connection can be granted. 38 C.F.R. §§ 3.303 (c), 4.9; see also Quirin at 390 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease-or injury-related defect to which the presumption of soundness can apply"). However, VA policy provides that if the defect was aggravated such that a superimposed disease or injury occurred during service; service connection may be established for the resultant disability. Here, the evidence of record fails to establish that the Veteran suffered from a superimposed injury or disease during active service that aggravated his spina bifida occulta. In this case, the Veteran's spina bifida occulta was present when he entered service and because it is a congenital defect, it is not subject to service connection. As noted above, service treatment records are entirely negative for signs or symptoms suggestive of chronic back problems or treatment for any trauma to the lumbar spine. Furthermore, on VA examination in January 2011, the Veteran specifically denied any type of injury to his lumbar spine during service. Also, of record is the January 2021 medical opinion that concluded the Veteran's spina bifida was not exacerbated by service. As the spina bifida occulta is a congenital defect, and the medical and lay evidence does not suggest any superimposed disease or injury that created additional disability, the Board finds that service connection cannot be awarded. Accordingly, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). TDIU The Veteran is seeking a TDIU. (Continued on the next page) VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Here, the Veteran has no service-connected disabilities. Therefore, TDIU cannot be granted. See Sabonis, 6 Vet. App. at 426 (where the law is dispositive, the claim must be denied due to a lack of legal merit). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bryant, Jeana R 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.