Citation Nr: 0411145	
Decision Date: 04/28/04    Archive Date: 05/06/04

DOCKET NO.  98-08 804A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, 
Minnesota


THE ISSUE

Entitlement to a monetary allowance as a child, born with spina 
bifida, of a Vietnam veteran.  


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

Martin F. Dunne, Counsel


INTRODUCTION

The veteran served on active duty from July 1965 to November 1968, 
and from December 1968 to July 1971.  His awards and decorations 
include the National Defense Service Medal with Bronze Star, the 
Vietnam Service Medal, and three Purple Heart Medals.  

The appellant, who is the daughter of the veteran, was born on 
June [redacted], 1986.  

This matter comes to the Board of Veterans' Appeals (Board) on 
appeal from a March 1998 rating decision the Department of 
Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  

In a March 2000 decision, the Board denied the appellant, a child 
of a Vietnam veteran, a monthly allowance for a disability 
resulting from spina bifida.  The appellant appealed the Board's 
decision to the United States Court of Appeals for Veterans' 
Claims (Court).  

In a three judge decision, dated in August 2002, the Court vacated 
the Board's March 2000 decision and remanded the issue to the 
Board to address specific issues, specifically, whether the plain 
language of the statute, which awards a child of a Vietnam veteran 
a monthly allowance for a disability resulting from spina bifida, 
would include coverage for a range of spina bifida conditions and 
was potentially not limited to "spina bifida" per se, but could, 
potentially, include other "forms and manifestations of spina 
bifida, except for spina bifida occulta."  Further, the Board was 
to address whether any of the appellant's other conditions is a 
form or manifestation of spina bifida.  

In March 2004, the Board solicited a medical expert's opinion of 
the issues raised by the Court.  The physician was requested to 
comment on the opinions offered by numerous physicians in this 
case, and to offer an opinion as to whether the appellant's 
occipital cephalocele falls within the spectrum of spina bifida.  
A copy of the opinion was sent to the appellant and her 
representative for review and response.  In reply, the appellant 
reiterated the arguments previously presented and referred to the 
medical opinions of record; she further noted she had no further 
evidence or argument to present.  


FINDINGS OF FACT

1.  The appellant is the biological child of the veteran and was 
conceived subsequent to the veteran's active military service in 
Vietnam during the Vietnam Conflict; the veteran's exposure to 
herbicides is conceded.  

2.  By law and regulation, the term "spina bifida" means any form 
and manifestation of spina bifida, except spina bifida occulta.  

3.  The appellant child was born with occipital encephalocele, 
associated with hydrocephalus and Arnold-Chiari malformation; she 
also has cervical spine syrinx.  


CONCLUSION OF LAW

The criteria for payment of a monetary allowance under 38 
U.S.C.A., Chapter 18, have been met.  38 U.S.C.A. §§ 1802, 1905, 
1821, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.814 (2003).  

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes that there has been a significant change in the 
law with enactment of the Veterans Claims Assistance Act of 2000 
(VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 
5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  
This law, which redefines the obligations of VA to the appellant 
with respect to claims for VA benefits, is applicable to this 
appeal.  See Karnas v. Derwinski, 1 Vet. App. 308, 321-13 (1991).  

Also, a recent Court decision, Pelegrini v. Principi, 17 Vet. App. 
412 (2004), essentially held that the notice and assistance 
provisions of the VCAA should be provided to a claimant prior to 
any adjudication of the claim.  In the case at hand, the 
appellant's substantially complete application had been filed in 
January 1998, and initial adjudication had taken place in March 
1998, both of which occurred almost three years before the VCAA 
was enacted.  

Nonetheless, in light of the Board's grant of the appellant's 
claim, as a child of a Vietnam veteran, for entitlement to a 
monthly allowance for a disability resulting from spina bifida, a 
remand to the RO to ensure compliance with the provisions of the 
VCAA would serve no purpose.  See Bernard v. Brown, 4 Vet. App 384 
(1993).  Under the circumstances in this case, the Board concludes 
that, if there has been any noncompliance with the VCAA, such 
error is harmless and does not prohibit consideration of this 
matter on the merits.  See ATD Corp. v. Lydall, Inc., 159 F.3d 
534, 549 (Fed. Cir. 1998); Miles v. Mississippi Queen, 753 F.2d 
1349, 1352 (5th Cir. 1985).  

Factual Background

The appellant's certificate of birth shows that she was born in 
June 1986 and that she is the biological daughter of the veteran.  
The veteran contends that his daughter is entitled to a monetary 
allowance as an individual who was born with, and is suffering 
from, spina bifida.  The argument is made that the specific 
disability, occipital encephalocele, is a form of spina bifida.  

The veteran's personnel records show that he served in Vietnam 
during the Vietnam Conflict.  His awards and decorations include 
the Vietnam Service Medal, the National Defense Service Medal with 
Bronze Star, and three Purple Heart Medals.  

In a medical statement dated in December 1997, the appellant's 
treating physician, John MacDonald, M.D., related he has been 
treating her for encephalocele, with associated motor problems.  
D. McLellan, M.D., in February 1998, related treating the 
appellant for encephalocele, associated with hydrocephalus, for 
which she had been treated with ventriculoperitoneal shunting.  An 
ophthalmologist, J. Mitchell, M.D., in March 1998, noted the 
appellant was suffering from a lazy eye, with esotropia, secondary 
to an occipital encephalocele.  

In an April 1998 letter, James J. Steidler, M.D., a 
neuroradiologist, wrote regarding the veteran's daughter's 
diagnosis of encephalocele, Chiari II malformation, and cervical 
syrinx as it related to spina bifida.  He asserted that neural 
tube defects include multiple abnormalities, only one of which is 
spina bifida.  He wrote that spina bifida can be very mild and 
incidental on radiographs, often at the lumbar region, and of no 
clinical significance.  However, multiple other neural tube 
closure defects at other levels of the spine, as well as the brain 
and skull, can be seen with multiple known associated anomalies 
such as Chiari II malformation, syringohydromyelia, hydrocephalus, 
callosal dysgenesis, etc.  Therefore, Dr. Steidler concluded, the 
neural tube closure defects, with spina bifida referring to a 
finding, which is often at the less serious end of this spectrum, 
are considered to be a spectrum of related abnormalities.  

In a May 1998 letter, Lanning William Houston, M.D., a 
neuroradiologist, stated that occipital cephalocele is a defect of 
the skull and dura, with extracranial extension of the 
intracranial structures, located in the occipital region.  He 
noted that one etiology for cephalocele is failure of closure of 
the sites of primary neural tube closure.  He noted that spinal 
dysraphism is a heterogeneous group of spinal anomalies that 
include spina bifida.  He described spina bifida as an incomplete 
closure of the bony elements of the spine posteriorly, and a form 
of failure of closure of the neural tube.  

In a May 1998 written medical opinion, John T. McDonald, M.D., who 
practices in the field of pediatric neurology, further asserted 
that occipital encephalocele is a form of spina bifida or open 
spine.  

In a May 1998 letter, Douglas H. Yock, Jr., MD., director of 
neuro-imaging at Abbot Northwestern Hospital, asserted that it was 
medically reasonable to consider "occipital encephalocele" in the 
same category as "spina bifida" from both embryologic and clinical 
perspectives.  He asserted that children born with occipital 
encephalocele have the same basic deformity (neural tube defect) 
and at least as great functional impairment as children born with 
spina bifida.  

During a June 1998 RO hearing, the veteran submitted the above-
discussed medical opinions in support of his daughter's claim.  He 
contended that these medical opinions demonstrate that his 
daughter's condition is a form of spina bifida, for which monetary 
allowance, pursuant to 38 U.S.C.A. § 1805(a), is warranted.  

In an August 1998 VA memorandum, the VA's Chief Public Health and 
Environmental Hazard Officer, who is a medical doctor, related she 
had reviewed the appellant's case and had consulted with VA's 
Director of the Environmental Agents Service, who is a Board-
certified neurologist.  Essentially, the opinion was that the 
appellant was born with an occipital encephalocele, associated 
with hydrocephalus and Arnold-Chiari malformation; she also has a 
spinal cord syrinx.  Further, the physician offered that the 
encephalocele is definitely a neural tube defect distinguishable 
from spina bifida only on the location of the defect, not by 
embryology or sequelae.  The joint medical opinion was that the 
appellant's occipital encephalocele defect is the equivalent of 
spina bifida, and is clearly within the intent of the legislation 
granting benefits to offspring of Vietnam veterans.  In summary, 
and based on the medical evidence, the physician related that the 
encephalocele represented the same process as spina bifida.  

In the course of review of this case, the Board sought an expert 
medical opinion to determine whether the appellant's occipital 
cephalocele falls within the spectrum of spina bifida.  The 
appellant's entire claims file was forwarded to the Chairman and 
Professor, Department of Radiology, University of Minnesota School 
of Medicine, in order to review the entire record, comment on the 
opinions of record, and obtain the medical expert's opinion as to 
whether the appellant's disability constitutes spina bifida.  

The medical expert related, in a letter dated in March 2004, that 
he had reviewed the appellant's claims file and the medical 
opinions in the file.  As to whether the appellant's occipital 
cephalocele falls within the spectrum of spina bifida, the medical 
expert agreed with the various medical opinions offered to date 
that the appellant's problem does, indeed, fall within the 
spectrum of spina bifida.  He further noted that, fundamentally, 
there are numerous types of cephaloceles, most of which would not 
qualify under this term.  The occipital cephalocele, however, is 
typically a lower, midline occipital and suboccipital disorder.  
Embryologically, these problems arise from what are called 
rhombomeres.  Other cephaloceles are a distinctly different 
disorder, such as medical basal cephaloceles of the temporal lobe, 
although all cephaloceles and spina bifida are essential neural 
tube hernias, such as brain, spinal, or meningeal hernias.  

Further, the medical expert was requested to offer opinions as to 
the appellant's diagnoses and whether each of the diagnoses was 
medically considered a form of spina bifida.  In response, the 
physician diagnosed:  a) occipital cephalocele, which he 
considered a form of spina bifida;  b) Chiari II malformation of 
the posterior fossa and upper cervical spinal canal, which he 
considered is a form of spina bifida;  c) hydrocephalus, which he 
considered is not a form of spina bifida; and  d) cervical 
syringomyelia from C4 through T1, which he considered is not a 
form of spina bifida.  

The medical expert was further requested to offer whether each of 
the appellant's diagnoses was a manifestation of spina bifida.  
The physician offered that:  a) occipital cephalocele was not a 
manifestation of spina bifida;  b) Chiari II malformation of the 
posterior fossa and upper cervical spinal canal, was not a 
manifestation of spina bifida;  c) hydrocephalus was a 
manifestation of spina bifida; and  d) cervical syringomyelia from 
C4 through T1, was a manifestation of spina bifida.  

In conclusion, the above-mentioned medical expert offered that he, 
as would appear to be the case for the other experts that have 
reviewed this appellant's file, agreed that the appellant's 
specific occipital/suboccipital cephalocele could be, and should 
be, included under the definition of spina bifida.  They are 
different expressions of the same intrinsic disorder, much as 
lumbosacral spina bifida is a different expression of the same 
intrinsic disorder as cervical spina bifida.  

Analysis

VA will pay a monetary allowance under 38 U.S.C.A., Chapter 18, 
based on the level of disability, to, or for, a person who VA has 
determined is an individual suffering from spina bifida, and whose 
biological mother or father is, or was, a Vietnam veteran.  See 38 
U.S.C.A. § 1805(a); 38 C.F.R. § 3.814.  This chapter applies with 
respect to all forms and manifestations of spina bifida, except 
spina bifida occulta.  See 38 U.S.C.A. § 1802.  

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, to 
include service in the waters offshore and service in other 
locations, if the conditions of service involved duty or 
visitation in the Republic of Vietnam.  See 38 C.F.R. § 
3.814(c)(1).  

In the case at hand, the appellant is the biological child of the 
veteran.  The appellant was conceived subsequent to the veteran's 
Vietnam service and she was born with occipital encephalocele.  VA 
concedes the veteran's exposure to herbicides while in Vietnam.  

In VAOPGCPREC 5-99, VA General Counsel held that, pursuant to 38 
U.S.C.A. § 1802, Chapter 18 of title 38, United States Code, 
applies with respect to all forms of spina bifida, other than 
spina bifida occulta.  The General Counsel further held 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 all neural tube defects.  However, VAOPGCPREC 5-
99 constitutes an interpretive rule and is not a change in law.  

The justices of the Court, who have remanded this case, would not 
necessarily be bound by VAOPGCPREC 5-99, have requested the Board 
to address that General Counsel precedent opinion.  The Board is 
bound by the regulations of the Department, instructions of the 
Secretary, and the precedent opinions of the General Counsel.  See 
38 U.S.C.A. § 7104(c); 38 C.F.R. § 14.507(b).  General Counsel 
precedent opinions are binding on VA officials and employees - 
unless there has been a material change in a controlling statute 
or regulation, or the opinion has been overruled or modified by a 
subsequent precedent opinion or judicial decision.  

In the case at hand, the medical experts, including the medical 
expert from whom VA requested medical opinions, unanimously 
concluded that the appellant's occipital cephalocele falls within 
the spectrum of spina bifida, although there are other types of 
cephaloceles that would not qualify as within the spectrum of 
spina bifida.  The occipital cephalocele, however, is typically a 
lower, midline occipital and suboccipital disorder which, 
embryologically, arise from rhombomeres.  The solicited medical 
expert noted that other cephaloceles, such as medical basal 
cephaloceles of the temporal lobe, are a distinctly different 
disorder, although all cephaloceles and spina bifida are 
essentially neural tube hernias.  The medical expert offered that 
the appellant's occipital cephalocele, as well as her Chiari II 
malformation of the posterior fossa and upper cervical spinal 
canal, are forms of spina bifida.  Hence, the appellant's specific 
occipital/suboccipital cephalocele could be, and should be, 
included under the definition of "spina bifida."  

Under the unique circumstances of this case, the Board notes that 
the appellant was born with, and suffers from, occipital 
cephalocele, with Chiari II malformation of the posterior fossa 
and upper cervical spinal canal, which medical experts have agreed 
are specific occipital/suboccipital cephalocele and which, unlike 
other cephaloceles, are forms of spina bifida.  The pertinent 
legislation applies with respect to all forms and manifestations 
of spina bifida, except spina bifida occulta.  

The pertinent regulation provides a monetary allowance to an 
individual suffering from spina bifida whose biological mother or 
father is, or was, a Vietnam veteran.  VAOPGCPREC 5-99 reiterates 
that the pertinent legislation applies with respect to all forms 
of spina bifida, other than spina bifida occulta, and interprets 
the term "spina bifida" as a defective closure of the bony 
encasement of the spinal cord, but does not include other neural 
tube defects.  However, all medical experts in the case before the 
Board have unanimously opined that the appellant's very specific 
disability, occipital/suboccipital cephalocele, is spina bifida.  
Therefore, the Board finds that the occipital/suboccipital 
cephalocele, as a specific form of spina bifida, would be included 
in the definition of spina bifida, as note in VAOPGCPREC 5-99, and 
is clearly within the intent of the legislation granting benefits 
to offspring of Vietnam veterans.  

When, after considering all the evidence, a reasonable doubt 
arises regarding a determinative issue in a claim, the benefit of 
the doubt shall be given to the claimant.  See 38 U.S.C.A. § 
5107(b); 38 C.F.R. § 3.102.  Under the unique circumstances of 
this case, and with resolution of all reasonable doubt in the 
veteran's favor, the Board concludes that "spina bifida," which is 
a neural tube hernia, is present in the appellant's case because 
her occipital/suboccipital cephalocele, according to the 
consistent opinions of medical experts, are forms of spinal 
dysraphism.  Hence, the benefits sought on appeal are granted.  


ORDER

Entitlement to a monetary allowance as a child, born with spina 
bifida, of a Vietnam veteran, is granted.  



____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or 
Board) is the final decision for all issues addressed in the 
"Order" section of the decision.  The Board may also choose to 
remand an issue or issues to the local VA office for additional 
development.   If the Board did this in your case, then a "Remand" 
section follows the "Order."  However, you cannot appeal an issue 
remanded to the local VA office because a remand is not a final 
decision. The advice below on how to appeal a claim applies only 
to issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not 
need to do anything.  We will return your file to your local VA 
office to implement the BVA's decision.  However, if you are not 
satisfied with the Board's decision on any or all of the issues 
allowed, denied, or dismissed, you have the following options, 
which are listed in no particular order of importance: 
* Appeal to the United States Court of Appeals for Veterans Claims 
(Court)
* File with the Board a motion for reconsideration of this 
decision
* File with the Board a motion to vacate this decision 
* File with the Board a motion for revision of this decision based 
on clear and unmistakable error. 
Although it would not affect this BVA decision, you may choose to 
also: 
* Reopen your claim at the local VA office by submitting new and 
material evidence. 
There is no time limit for filing a motion for reconsideration, a 
motion to vacate, or a motion for revision based on clear and 
unmistakable error with the Board, or a claim to reopen at the 
local VA office.  None of these things is mutually exclusive - you 
can do all five things at the same time if you wish.  However, if 
you file a Notice of Appeal with the Court and a motion with the 
Board at the same time, this may delay your case because of 
jurisdictional conflicts. If you file a Notice of Appeal with the 
Court before you file a motion with the BVA, the BVA will not be 
able to consider your motion without the Court's permission. 

How long do I have to start my appeal to the Court?  You have 120 
days from the date this decision was mailed to you (as shown on 
the first page of this decision) to file a Notice of Appeal with 
the United States Court of Appeals for Veterans Claims.  If you 
also want to file a motion for reconsideration or a motion to 
vacate, you will still have time to appeal to the Court.  As long 
as you file your motion(s) with the Board within 120 days of the 
date this decision was mailed to you, you will then have another 
120 days from the date the BVA decides the motion for 
reconsideration or the motion to vacate to appeal to the Court.  
You should know that even if you have a representative, as 
discussed below, it is your responsibility to make sure that your 
appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans 
Claims?  Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure 
for filing a Notice of Appeal, the filing fee (or a motion to 
waive the filing fee if payment would cause financial hardship), 
and other matters covered by the Court's rules directly from the 
Court. You can also get this information from the Court's web site 
on the Internet at www.vetapp.uscourts.gov, and you can download 
forms directly from that website.  The Court's facsimile number is 
(202) 501-5848. 

To ensure full protection of your right of appeal to the Court, 
you must file your Notice of Appeal with the Court, not with the 
Board, or any other VA office. 

How do I file a motion for reconsideration? You can file a motion 
asking the BVA to reconsider any part of this decision by writing 
a letter to the BVA stating why you believe that the BVA committed 
an obvious error of fact or law in this decision, or stating that 
new and material military service records have been discovered 
that apply to your appeal. If the BVA has decided more than one 
issue, be sure to tell us which issue(s) you want reconsidered. 
Send your letter to: 
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

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CONTINUED


Remember, the Board places no time limit on filing a motion for 
reconsideration, and you can do this at any time. However, if you 
also plan to appeal this decision to the Court, you must file your 
motion within 120 days from the date of this decision. 

How do I file a motion to vacate? You can file a motion asking the 
BVA to vacate any part of this decision by writing a letter to the 
BVA stating why you believe you were denied due process of law 
during your appeal. For example, you were denied your right to 
representation through action or inaction by VA personnel, you 
were not provided a Statement of the Case or Supplemental 
Statement of the Case, or you did not get a personal hearing that 
you requested. You can also file a motion to vacate any part of 
this decision on the basis that the Board allowed benefits based 
on false or fraudulent evidence.  Send this motion to the address 
above for the Director, Management and Administration, at the 
Board.  Remember, the Board places no time limit on filing a 
motion to vacate, and you can do this at any time. However, if you 
also plan to appeal this decision to the Court, you must file your 
motion within 120 days from the date of this decision. 

How do I file a motion to revise the Board's decision on the basis 
of clear and unmistakable error? You can file a motion asking that 
the Board revise this decision if you believe that the decision is 
based on "clear and unmistakable error" (CUE).  Send this motion 
to the address above for the Director, Management and 
Administration, at the Board. You should be careful when preparing 
such a motion because it must meet specific requirements, and the 
Board will not review a final decision on this basis more than 
once. You should carefully review the Board's Rules of Practice on 
CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified 
representative before filing such a motion. See discussion on 
representation below. Remember, the Board places no time limit on 
filing a CUE review motion, and you can do this at any time. 

How do I reopen my claim? You can ask your local VA office to 
reopen your claim by simply sending them a statement indicating 
that you want to reopen your claim.  However, to be successful in 
reopening your claim, you must submit new and material evidence to 
that office. See 38 C.F.R. 3.156(a). 

Can someone represent me in my appeal?  Yes. You can always 
represent yourself in any claim before VA, including the BVA, but 
you can also appoint someone to represent you.  An accredited 
representative of a recognized service organization may represent 
you free of charge.  VA approves these organizations to help 
veterans, service members, and dependents prepare their claims and 
present them to VA. An accredited representative works for the 
service organization and knows how to prepare and present claims. 
You can find a listing of these organizations on the Internet at: 
www.va.gov/vso.  You can also choose to be represented by a 
private attorney or by an "agent." (An agent is a person who is 
not a lawyer, but is specially accredited by VA.) 

If you want someone to represent you before the Court, rather than 
before VA, then you can get information on how to do so by writing 
directly to the Court.  Upon request, the Court will provide you 
with a state-by-state listing of persons admitted to practice 
before the Court who have indicated their availability to 
represent appellants.  This information is also provided on the 
Court's website at www.vetapp.uscourts.gov. 

Do I have to pay an attorney or agent to represent me?  Except for 
a claim involving a home or small business VA loan under Chapter 
37 of title 38, United States Code, attorneys or agents cannot 
charge you a fee or accept payment for services they provide 
before the date BVA makes a final decision on your appeal. If you 
hire an attorney or accredited agent within 1 year of a final BVA 
decision, then the attorney or agent is allowed to charge you a 
fee for representing you before VA in most situations.  An 
attorney can also charge you for representing you before the 
Court.  VA cannot pay fees of attorneys or agents. 

Fee for VA home and small business loan cases:  An attorney or 
agent may charge you a reasonable fee for services involving a VA 
home loan or small business loan.  For more information, read 
section 5904, title 38, United States Code. 

In all cases, a copy of any fee agreement between you and an 
attorney or accredited agent must be sent to: 

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for 
reasonableness, or you or your attorney or agent can file a motion 
asking the Board to do so. Send such a motion to the address above 
for the Office of the Senior Deputy Vice Chairman at the Board. 


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