Citation Nr: 0402695 Decision Date: 01/30/04 Archive Date: 02/05/04 DOCKET NO. 01-03 713A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to monetary benefits under 38 U.S.C.A. § 1805 for spina bifida in a child of a Vietnam veteran. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Sampson, Counsel REMAND This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. That decision denied entitlement to monetary benefits under 38 U.S.C.A. § 1805 for birth defects in the veteran's child. The appellant is the child of the veteran. The Board notes that the claims file has been misplaced and an attempt has been made to reconstruct the information in the claims file primarily from evidence provided by the veteran; however, the reconstruction in incomplete. Not included in the reconstructed claims file is the verification of the veteran's service. Since a claim for monetary benefits under 38 U.S.C.A. § 1805 is based on a veteran's service in Vietnam and presumed exposure to Agent Orange, verification of the veteran's service should be obtained and associated with the claims file, either by requesting another copy of the veteran's DD-214 from the veteran, or contacting the National Personnel Records Center (NPRC) for the necessary information. According to the applicable law and regulations, VA shall pay a monthly allowance, based upon the level of disability, to or for a child who has been determined to be suffering from spina bifida and who is a child of a Vietnam veteran. 38 U.S.C.A. § 1805(a) (West 2002); 38 C.F.R. § 3.814(a)(2003). Within the meaning of this law "spina bifida" means any form and manifestation of spina bifida except spina bifida occulta. 38 U.S.C.A. § 1802 (West 2002); 38 C.F.R. § 3.814(c)(3)(2003). The Board notes that this is the only birth defect which warrants the award of monetary benefits based on the herbicide exposure of the veteran. A hospital report from August 1967 shows that the appellant was born with an occipital meningocele. A November 1974 physical examination of the appellant shows a diagnosis of "status postoperative repair of occipital encephalocele at birth." An October 1977 neurosurgery report notes a diagnosis of myelomeningocele. In September 2002, T. Derbes, M.D., wrote that the appellant was presently in his care and carried diagnoses including history of occipital meningocele and history of C1 spina bifida. He concurred with the contents of a letter from K. Elzawahry, M.D., dated in March 2002, which described four clinically distinct spina bifidas. This letter from Dr. Elzawahry is not included in the claims file. A publication of the National Information Center for Children and Youth with Disabilities, submitted in April 2003, shows meningocele and myelomeningocele as two of the three general types of spina bifida. In a precedent opinion, VAOPGCPREC 5-99, the VA General Counsel held that 38 U.S.C.A. § 1802, Chapter 18 of Title 38, United States Code, applies to all forms of spina bifida other than spina bifida occulta, and that for purposes of that chapter 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. The RO relied on this to deny the appellant's claim, noting that the appellant had been diagnosed with encephalocele and was therefore precluded from benefits under 38 U.S.C.A. § 1802 as a neural tube defect. The RO also noted that his diagnosis had been in the occipital area or "occiput", an area of the head, as opposed to the spine, and as such could not be spina bifida within the meaning of 38 U.S.C.A. § 1802. However, 38 U.S.C.A. § 1802 only states that "spina bifida" means any form and manifestation of spina bifida except spina bifida occulta. 38 U.S.C.A. § 1802 (West 2002). The Court of Appeals for Veterans Claims (COVC) has found that VAOPGCPREC 5-99 is not necessarily binding on VA adjudicators in addressing this issue. See Jones v. Principi, 16 Vet. App. 219 (2002) (holding that the VA Office of General Counsel failed in VAOPGCPREC 5-99 to address what the broader "forms and manifestations of spina bifida" could be and that the Board erred in relying solely upon the definition of spina bifida set forth in the General Counsel opinion). The Board is unable to determine from the medical evidence in the claims file whether the appellant has a "form and manifestation" of spina bifida and a medical opinion should be obtained to address this question. The Board notes that the appellant has not been apprised of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000) VCAA. The RO should ensure compliance with the duty to notify and assist provisions of the (VCAA), to include notifying the claimant of the evidence needed to substantiate his claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. See 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accordingly, this case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. for the following action: 1. The RO must assure compliance with the requirements of the VCAA. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2003). The RO should review the record and send an appropriate letter to the veteran to ensure compliance with all notice and assistance requirements set forth in the VCAA, to include 38 U.S.C. § 5103(b). The RO's attention is directed to Quartuccio v. Principi, supra, pertaining to the amended version of 38 U.S.C.A. § 5103(a), which requires that the Secretary identify for the claimant which evidence the VA will obtain and which evidence the claimant is expected to present. In so doing, the RO should assist in taking every action necessary to assist in determining whether the veteran's child has a form or manifestation of spina bifida. 2. Verification of the veteran's service, to include qualifying service in Vietnam, should be obtained and associated with the claims file. 3. The RO should request identification from the appellant of all medical records pertinent to the current diagnosis of his claimed form or manifestation of spina bifida. The RO should obtain appropriate releases and obtain the identified records, or, if the appellant prefers, he should obtain the records himself and submit them to the RO. The Board is particularly interested in the contents of a letter from K. Elzawahry, M.D., dated in March 2002, which described four clinically distinct spina bifidas. 4. After completion of the above, the RO should obtain a medical opinion from a physician expert in the field of spinal defects as to whether it is at least as likely as not that the veteran's child has a form or manifestation of spina bifida. If the physician finds that physical examination of the veteran's child would be helpful in making such a determination, such an examination should be scheduled. The physician should provide a rational for any opinion expressed, preferably with citation to the clinical record and medical literature. 5. The RO should readjudicate the issue of entitlement to benefits under 38 U.S.C.A. § 1805 for a child with a form or manifestation of spina bifida with consideration of all of the evidence added to the record since the Supplemental Statement of the Case (SSOC) issued in December 2002. 6. If the benefits requested on appeal are not granted to the appellant's satisfaction, the RO should issue an SSOC, which must contain notice of all relevant action taken on the claim, to include a summary of all of the evidence added to the record since the October 2002 SSOC. A reasonable period of time for a response should be afforded. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if otherwise in order. No action is required of the veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02. _________________________________________________ JEFF MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).