Citation Nr: 0427726 Decision Date: 10/06/04 Archive Date: 10/12/04 DOCKET NO. 00-05 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a monetary allowance for a child suffering from spina bifida, on the basis of the veteran's service in Vietnam, under 38 U.S.C.A. § 1805 and 38 C.F.R. § 3.814. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dennis F. Chiappetta, Counsel INTRODUCTION The appellant is a Vietnam veteran who served on active duty from April 1967 to August 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In March 2001, the Board remanded the matter for additional development. The case was transferred to the RO in Denver, Colorado, since this RO has jurisdiction of all spina bifida cases. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND 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); 38 C.F.R. § 3.814(a). 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; 38 C.F.R. § 3.814(c)(3). In a precedent opinion, VAOPGCPREC 5-99, the VA General Counsel held 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. [Notably, The United States Court of Appeals for Veterans Claims (Court) 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).] This Vietnam veteran's daughter was born with numerous congenital anomalies and a condition subsequently identified as VACTERL Syndrome or VATER Syndrome. November 1986 hospital records and a July 1987 X-ray reveal that the veteran's child has numerous anomalies in the upper lumbar and lower thoracic spine with hemivertebrae. The records do not include a diagnosis of spina bifida. A June 2002 VA medical opinion indicated that while the veteran's daughter "apparently has spina bifida, this is part of VATER Syndrome and is not an isolated diagnosis." The Board is unable to determine from the medical evidence in the claims file whether spina bifida has been established as a diagnosis or whether the appellant's daughter has a "form and manifestation" of spina bifida. An examination and expert medical opinion are needed to resolve these matters. Accordingly, this case is REMANDED for the following: 1. The RO must continue to ensure compliance with the requirements of the Veterans Claims Assistance Act of 2000 (VCAA) in accordance with 38 U.S.C.A. §§ 5102, 5103, 5103A; implementing regulations; interpretative precedent Court decisions; and any other applicable legal precedent. The veteran and his representative should be afforded the opportunity to respond. 2. The RO should ask the appellant to identify any outstanding medical records pertaining to his daughter's spinal anomalies which are claimed to be a form or manifestation of spina bifida and to provide any releases needed to obtain such records. The RO should obtain complete records from all sources identified. (In the alternative, the appellant may obtain the records himself and submit them to the RO.) 3. After completion of the above, the RO should arrange for the veteran's daughter to be examined by a physician with expertise in the field of spinal defects to determine whether at least as likely as not she has spina bifida or a "form or manifestation" of spina bifida. All appropriate studies should be performed. The claims folder must be available to, and reviewed by the examiner. The physician should explain the rationale for any opinion given. 4. The RO should then readjudicate the claim. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case and provide the veteran and his representative the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The purposes of this remand are to ensure notice is complete, and to assist the veteran with the development of his claim. He has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk 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).