Entitlement to benefits under 38 U.S.C. §§ 1805 for a child born with spina bifida is denied.

Prior to July 31, 2013, a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied.

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Citation Nr: A21000329
Decision Date: 01/06/21	Archive Date: 01/06/21

DOCKET NO. 200729-106073
DATE: January 6, 2021

ORDER

Entitlement to benefits under 38 U.S.C. §§ 1805 for a child born with spina bifida is denied.

FINDING OF FACT

The Appellant does not have spina bifida, other than spina bifida occulta.

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 not been met. 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1966 to February 1968, including service in the Republic of Vietnam. The appellant is the Veteran’s son, who seeks entitlement to benefits under the provisions of 38 U.S.C. § 1805 for spina bifida.

A decision was issued under the legacy system in April 2015 and VA received a timely notice of disagreement (NOD) in December 2015. In March 2018, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). In May 2018, VA received a substantive appeal (Form 9). 

The Appellant attempted to participate in the Rapid Appeals Modernization Program (RAMP), by completing an opt-in election to request Higher-level review of the April 2015 decision. However, the AOJ notified the Appellant that spina bifida cases were not eligible for RAMP. See RAMP Opt-in Election (May 2018) and Appeal Notification Letter (October 2018).

The claim was certified to the Board of Veterans’ Appeals (Board) for appellate review. See Form 8 (July 2018).

In February 2019, the Board remanded this matter to obtain a clarifying opinion. The Appellant was afforded a VA examination in February 2020 and an opinion was associated with the file. The Board finds that there has been substantial compliance with the terms of the remand. See Dyment v. West, 13Vet. App.141, 146-47(1999). See also, Stegall v. West, 11 Vet. App. 268 (1998).

In June 2020, the AOJ issued a supplemental statement of the case (SSOC). Next, the Appellant opted the claim into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a June 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying the June 2020 SSOC.  Therefore, the June 2020 SSOC is the decision on appeal.  

In the June 2020 VA Form 10182, Decision Review Request: Board Appeal, the Appellant elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the June 2020 SSOC, as well as any evidence submitted by the Appellant or his representative with, or within 90 days from receipt of, the VA Form 10182.  38 C.F.R. § 20.303.

Entitlement to benefits under 38 U.S.C. §§ 1805 for birth defects of a child born to a Vietnam Veteran.

The Appellant contends that he has conditions that are related to his father’s (the Veteran’s) exposure to herbicide agents during military service. The Appellant’s conditions include a supralevator high imperforate anus with ureter and pelvic junction obstruction and recto uretal fistulas partially formed coccyx. See NOD (December 2015), VA Form 9 (May 2018), and VA Form 10182 (June 2020).

The Board concludes that the criteria for VA compensation to the Appellant under 38 U.S.C. § 1805 are not met as the preponderance of the evidence is against finding that has a diagnosis of spina bifida. 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814.

VA will provide certain benefits for an individual with spina bifida whose biological father or mother is a Vietnam Veteran. See 38 U.S.C. §§ 1802, 1805; 38 C.F.R. § 3.814. 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) (emphasis added). 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. VAOPGCPREC 5-99; but see Jones v. Principi, 16 Vet. App. 219 (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).

To qualify for a monthly allowance for birth defects other than spina bifida, the Appellant must show that the Vietnam Veteran who was exposed to herbicide agents is his or her mother. 38 U.S.C. §§ 1812, 1815; 38 C.F.R. § 3.815. 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. See Jones, 16 Vet. App. at 219.

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). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Republic of Vietnam” includes the 12-nautical mile territorial sea. See Procopio v. Wilkie, 913 F.3d 1371(Fed. Cir. 2019) (en banc).

In this case, the Appellant’s father is a Vietnam veteran. However, the appellant has stated that his mother is did not have Vietnam service. See Birth Certificate, DD 214, VA 21-0304 Application for Spina Bifida Benefits (May 2014).

As such, the only question that remains before the Board is whether the Appellant has had a diagnosis of spina bifida, other than spina bifida occulta. 

The Board concludes that the Appellant does not have a diagnosis of spina bifida; while he has been diagnosed with spina bifida occulta, this is not eligible for VA compensation.

March 1982 VA records contains a loopogram, which shows the Appellant was diagnosed with high formation of anorectal malformation, opacification of the fistula with the prostatic urethra and suspicion of vesico-ureteral reflux. Subsequently, the Appellant underwent surgery for high anorectal agenesis with rectoprostatic fistula. Post-operation, the results of a cystogram and IVP, conducted in April 1982, showed a small blind pouch located at the base of the bladder, normal urethra and no evidence of fistula or leakage, It also showed no evidence of vesicoureteral reflux, normal sized kidneys with slight dilation of the upper pole calices, but no evidence of obstruction. It was noted that the findings were significantly improved and were probably indicative of a progressive resolution of hydronephrosis secondary to reflux. His final diagnoses were supralevator imperforate anus; probable right ureteropelvic junction obstruction; and rectourethral fistula with urinary tract infection. See Medical Treatment Record- Government Facility (December 2015).

A June 2014 private medical opinion by Dr. C. Bash (C.B.), reflects that (1) the Appellant was diagnosed with neuro tube defects (NTD); specifically, supralevator imperforate anus with ureter pelvic junction (UPJ) obstruction and rectourethral fistula with urinary tract infection; and (2) the Appellant’s NTD problems were caused by the Veteran’s exposure to herbicide agents “to at least the “90 percent level of probability.” Dr. C.B. indicated he was qualified to provide this opinion as he had advanced spine and brain training, having completed a neuroradiology fellowship and as a National Institute of Health guest researcher. He also cited to a 1997 article entitled “Birth defects among offspring of Norwegian farmers 1967-1991,” which assessed neural tube defects (spinal bifida and hydrocephalia) associated with pesticides and noted that a recent AO publication by the Institute of Medicine listed several studies with a positive association between AO and neural tube defects. Dr. C.B. conceded that there were no level 1 double blinded clinically controlled trials, but that animal studies are supportive of a carcinogenic cause and effect.

A September 2016 private medical opinion by Dr. C.B. again reflects that the Appellant’s NTDs were caused by the Veteran’s exposure to herbicide agents. 

In consideration of the June 2014 and September 2015 private medical opinions, the Board remanded this claim in February 2019 for a medical opinion. The examiner was asked to opine whether it was at least as likely as not that the appellant had a form or manifestation of spina bifida, except spina bifida occulta, and to note specifically whether it was at least likely as not that the Appellant’s neuro tube condition was a form or manifestation of spina bifida.

On February 2020 VA examination, a VA neurologist found that the Appellant had diagnoses of neurogenic anal sphincter or rectum, neurogenic bladder, and spina bifida occulta. The VA neurologist obtained a detailed neurological history, reviewed the available medical evidence, to include the June 2014 and September 2015 private medical reports, and performed an in-person evaluation of the Appellant. In doing so, the VA neurologist noted that the record showed the Appellant was born with a high imperforate anus with fistula into the bladder from the distal stump through a colo-uretal fistula through the prostate and that x-ray imaging at birth showed hemivertebra of the 4th sacral vertebra. The VA neurologist explained that the hemivertebra of the 4th sacral vertebra could be viewed as a type of spina bifida occulta.

Upon completion of the examination, the VA neurologist opined that the Appellant had spina bifida occulta and was significantly disabled due to severe neurogenic bladder and bowel.  He further opined that it is less likely as not that he has spina bifida. The rationale was that there was no outpouching in the lumbosacral region nor was there any cutaneous manifestations suggestive of spina bifida. The VA neurologist thus concluded it was less likely than not that the Appellant had spina bifida, but rather spina bifida occulta.

A July 2020 private medical opinion by Dr. P. Bernard (P.B.) reflects that it was more likely that not that the Appellant’s NTDs were caused by the Veteran’s exposure to herbicide agents in service in the Vietnam War. The rationale was that there is increasingly more experimental and epidemiological evidence for potentially adverse outcomes of paternal exposures and birth defects related to herbicide agents. He stated the Appellant’s symptoms, which include hemibertebra in 4th sacrum, scoliosis, neurogenic bladder and neurogenic anal sphincter, are consistent with neural tube defect. He noted the Appellant also had imperforate anus and aspermia, which made his situation worse. In a concurring opinion, dated in July 2020, Dr. C.B. stated he reviewed the report from Dr. P.B. and agreed with the etiology of the Appellant’s NTDs; he stated it was still his opinion that the Veteran’s exposure to herbicide agents in Vietnam is the most likely cause for the Appellant’s neural tube defect.

The medical evidence does not establish that Appellant has spina bifida, other than spina bifida occulta. The Appellant is not competent to opine that he has spina bifida as this is a complex medical matter that is not susceptible to lay observation. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

Further, to the extent that the private medical opinions concur that the Appellant has NTDs related to the Veteran’s (his father’s) exposure to herbicide agents, VA compensation benefits do not extend to NTDs of children of Vietnam veterans exposed to herbicide agents. See generally, 38 U.S.C. Chapter 18 (Benefits for Children of Vietnam Veterans and Other Veterans).

The Board finds that the February 2020 VA examination provides the most probative evidence. The VA neurologist obtained a detailed neurological history, reviewed the available medical evidence, and performed an in-person evaluation of the Appellant before opining that the Appellant has a diagnosis of spina bifida occulta. As the VA examiner’s opinion was based on a review of the pertinent medical history and was supported by sound medical rationale, it provides compelling evidence against the appellant’s claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304(2008) (indicating “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion”); Wray v. Brown, 7 Vet. App. 488, 493(1995) (holding that the adoption of an expert medical opinion may satisfy the Board’s statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the claimant’s position). Accordingly, the February 2020 VA examination is afforded great probative value.

In making the above finding, the Board recognizes that the VA neurologist did not address the specific question of whether the appellant’s neuro tube condition was a form or manifestation of spina bifida, as had been requested in the Board’s February 2019 remand. However, it is clear from the VA neurologist’s conclusion that as the Appellant has spina bifida occulta and not spina bifida, the neural tube condition is not a form or manifestation of spina bifida. Moreover, as noted above, the VA neurologist thoroughly reviewed the entire claims file, prior to rendering his opinion. See Dyment v. West, 13Vet. App.141, 146-47(1999) (holding that only substantial compliance, not strict compliance, with the terms of an opinion request is required).

As for the private physicians’ favorable medical opinions, although Drs. C.B. and P.B. opined that it was at least as likely as not that the Appellant’s conditions, to include supralevator imperforate anus with UPJ obstruction and rectourethral fistula with urinary tract infection, were NTDs ,and that the NTDs are due to the Veteran’s exposure to herbicide agents during military service, neither Dr. C.B. or P.B. addressed the pertinent issue in this case, which is whether the Appellant has a diagnosis of spina bifida, not spina bifida occulta. 

The Board acknowledges that Dr. C.B. submitted treatise evidence in support of the claim and that Dr. P.B. made generalizations that there are increasingly more experimental and epidemiological evidence for potentially adverse outcomes of paternal exposures and birth defects. However, treatise evidence cannot simply provide speculative generic statements irrelevant to the appellant’s claim.  Treatise evidence can only provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of the specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.  See Wallin v. West, 11 Vet. App. 509, 514 (1998); Sacks v. West, 11 Vet. App. 314, 317 (1998); Stadin v. Brown, 8 Vet. App. 280, 284 (1995).

The Board finds that the one paragraph snippet from the treatise Dr. C.B. submitted and Dr. P.B. assertions amount to generic statements, lacking relevance to the Appellant’s claim. It discusses birth defects among offspring of Norwegian farmers 1967-1991 related to unspecified pesticides, not spina bifida of offspring of Vietnam veterans. Dr. P.B. did not submit any specific treatise evidence. Accordingly, the June 2014, September 2015, and two July 2020 private medical opinions are afforded no weight.

The Board acknowledges the Appellant’s contention that his NTDs are caused by his father’s exposure to herbicide agents. However, the Board must apply the law as promulgated and is bound by statute and regulations.  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). Further, the Board is without authority to grant benefits because the Appellant might perceive such a grant to be equitable. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).

The law is dispositive. The claim is denied because of the absence of legal merit or entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 

 

C.A. SKOW

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	N. Pendleton, Associate 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.